Definitive Report - Report No 187, November 1978

Case No 902 (Australia) - Complaint date: 05-SEP-77 - Closed

1. 302. The complaint of the Administrative and Clerical Officers' Association (CPS) is contained in a communication dated 5 September 1977. The complaint was transmitted to the Government which transmitted its observations thereon in a communication dated 21 August 1978.
2. 303. 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

1. 304. The Administrative and Clerical Officers' Association stated that it is a registered organisation under the provisions of the Conciliation and Arbitration Act, 1904. This Act, continued the complainants, establishes the federal dispute-settling machinery, the Conciliation and Arbitration Commission which is empowered to make binding awards, and provides for the enforcement of awards and agreements. The Act also provides for the recognition of federal unions and employers' organisations and prescribes certain conditions concerning rules with which these must comply. The complainants continued that their association was registered in 1913 and has a membership of approximately 49,000. Membership is drawn nationally from among employees of the Australian Government and the Federal Statutory Authorities, but in particular from among officers of the Australian public service. Membership of the association is open to employees of these bodies employed in clerical and administrative occupations. The positions occupied by members range from base-grade clerks to the most senior managers and approximately 95 per cent of persons eligible for membership of the association are in fact members.
2. 305. The complainants stated that their complaint concerns the provisions of the Commonwealth Employees (Employment Provisions) Act 1977, an enactment of the Government of the Commonwealth of Australia which, in the view of the complainants, breaches the principles set out in the freedom of association Conventions ratified by Australia.
3. 306. The complainants explained that the immediate circumstances of the introduction of this legislation concerned a dispute between the Australian Postal Commission and the Australian Postal and Telecommunications Union over the introduction of a shorter working week. Following a rejection of a settlement proposal drawn up by the Conciliation and Arbitration Commissioner on 17 August 1977, the workers decided to hold a 24-hour strike as from midnight 21 August 1977. Notice of intention to introduce the Commonwealth Employees (Employment Provisions) Bill was given to the Federal Parliament on the night of 17 August 1977. The Bill commenced its passage in the House of Representatives in the afternoon of the following day and was finally passed by the Senate on the afternoon of 19 August 1977. Royal assent was received on the same day. According to the complainants there was no consultation whatsoever with trade unions whose members were likely to be affected by the legislation nor was the legislation discussed by the National Labour Consultative Council
4. 307. The complainants stated that the Commonwealth Employees (Employment Provisions) Act, 1977, provides for the standing down, suspension or dismissal by any Commonwealth authority, or minister, of any Commonwealth employees engaged in industrial action. The term "Commonwealth employees" is very broadly defined in section 3 of the Act to include not only persons employed under the Public Service Act, 1922, but also "any other persons employed by the Commonwealth or by a Commonwealth authority, whether in a permanent capacity or otherwise". "Commonwealth authority" is defined to include authorities or bodies, incorporated or unincorporated, established under a law of the Commonwealth or a territory and companies or corporate bodies is which the Commonwealth has a controlling interest. Members of the defence forces are excluded from the definition of Commonwealth employees.
5. 308. The complainants continued that the Act operates against such employees engaged in "industrial action" as defined in section 3. The definition includes any conceivable form of strike, ban, limitation, restriction, delay or change in work performance whether relating to all or only part of the employee's normal duty. According to the complainants both isolated and repeated conduct of this nature constitutes industrial action.
6. 309. The powers of standing down, suspension and dismissal can be exercised by the following bodies: the Public Service Board in the case of persons employed under the Public Service Act; in any other cases the authority by which the person is employed (section 3); any person to whom an- employing authority delegates its powers (section 13 provides that an employing authority may delegate any of its powers to any person); and a "minister", exercising his right of direction under section 12 of the Act.
7. 310. Section 4 of the Act, continued the complainants, provides that the Commonwealth employees engaged in industrial action may be declared suspended for a period of time to be determined by the employing authority. The requirement of notice by the authority is "such notice as the authority thinks appropriate to be given" (section 9). During a period of suspension declared under section 4, the employee is not, except as provided for in the declaration, entitled to "any salary, wage or other remuneration or allowance" normally payable to him (section 6). The effective suspension of these entitlements is not dealt with by the Act. The complainants suggested that these would cease to accrue during the period.
8. 311. The complainants explained that after an employee has been suspended under section 4 he is liable to dismissal under section 8. This latter section empowers the employing authority or a minister to terminate the employment, if the authority or the minister is of the opinion that it is "in the public interest" to do so. Such a termination can be revoked "if the employing authority thinks it proper to do so" (section 8(2)). Upon revocation of the termination the authority may also "give such other direction in relation to terms and conditions of employment of the employee as the employing authority considers appropriate in the circumstances" (section 8 (3) (b) ).
9. 312. According to the complainants, where industrial action occurs (whether involving Commonwealth employees or not), and the situation arises such that Commonwealth employees "cannot be usefully employed" or "there is serious disruption to the performance of a function by an employing authority" the employing authority may under section 5 stand down all or some of the Commonwealth employees affected for any period it so specifies. As with suspension the employees stood down lose their entitlement to all remuneration to which they would otherwise have been entitled.
10. 313. In the view of the complainants two other important features of the Act are that section 11 specifies that any declaration or determination (effecting suspension, dismissal or stand down) made under the Act "has effect notwithstanding any law or any award that is inconsistent with a declaration or determination". The Act also makes no specific provision for appeal or review procedures of any kind in respect of powers exercised under the Act.
11. 314. The complainants alleged that the Commonwealth Employees (Employment Provisions) Act inhibits the right of employees of the Australian Government to organise their activities and to formulate their programmes and to defend and further their occupational interests. As such it violates the principles enunciated in Article 3 of Convention No. 87. The Act enacted as an intimidatory device against Australian government employees engaged in industrial action in defence of their occupational interests can be so applied as to effectively preclude the use by employees of direct methods of exerting pressure on an employer. The use by employees of direct methods of exerting pressure upon the employer, continue the complainants including strikes, bans, etc., to press an occupational claim or express a grievance is an inherent element of trade union activity. To deny the use of direct action by employees, particularly the withholding in some form of services in the furtherance and defence of their own interests, is to ultimately render impotent their means of pursuing such interests in the face of employer opposition and intransigence.
12. 315. The complainants continued that the Minister, in the House of Representatives, attempted to justify the Act in stating that "the feature that distinguishes government employees is their responsibility for providing this wide range of services essential to the well-being of a modern-day community". In the view of the complainants, it is the nature of the employment relationship that distinguishes government employees from other employees and not the functions they perform. The complainants asserted that pilots working for a private airline company perform a function just as "essential" as air-traffic controllers employed by the Department of Transport. In the opinion of the complainants it is absurd to assert that all government employees perform essential functions merely because of the fact that they are employed by a public authority.
13. 316. According to the complainants the legislation makes no reference to any concept of "essential services" however defined despite the reference by the Minister for Employment and Industrial Relations to "the wide range of services essential to the community". Secondly, there is also no reference to the existence of any threat by any person or organisation or to any interruption or dislocation of "essential services". Thirdly the federal Act does not provide for any time limit on the operations of the powers prescribed by itself.
14. 317. The complainants pointed out that the essential question lies in the fact that the provisions of the Act preclude the operation of established and impartial arbitral and appellate procedures relating to suspension, dismissal and stand down. The provisions of the Act, added the complainants, described above radically alter established employment relationships in the federal public sector. First the operation of the normal disciplinary procedures including inherent appeal mechanisms applying to Australian government employees is precluded by the Act. In relation to disciplinary matters where employees are liable to suspension or dismissal, elaborate procedures and appeal mechanisms are prescribed by the various pieces of legislation under which the vast majority of Australian government employees are employed. For example, continued the complainants, section 55(3) of the Public Service Act provides that an officer charged with an offence shall receive written notice of the charge, has the right to a written reply and appeal against the decision of his chief officer. Section 55(4) specifies the grounds of appeal and section 57 entitles the officer to legal representation at an appeal inquiry. Section 60(1) provides that all documents intended to be used at the inquiry should be furnished to the officer prior to the inquiry. An officer suspended for an offence under the Act is entitled to his salary during the period of suspension unless otherwise ordered by the Public Service Board (section 60(4)). Similarly, continued the complainants, the Postal Services Act, 1975, provides for the furnishing of a written notice of the charge (section 61(3) and (6)), an inquiry into the charge (section 61(5)), a right of written reply by the officer charged (section 61(6)) and an appeal to a Disciplinary Appeal Board (section 65(1)). The Act provides that an officer suspended under section 62 may receive his salary if the Postal Commission is satisfied that the officer is suffering or has suffered hardship. The Telecommunications Act, 1975, under which employees of TELECOM Australia are employed, also specifies the same disciplinary procedure.
15. 318. The complainants added that section 66 of the Public Service Act provides for the summary dismissal of public servants involved in "any strike which interferes with or prevents the carrying-on of any part of the public services or utilities of Australia" but only "after investigation and hearing" by the Public Service Board. In a submission to the Royal Commission on Australian government administration, the Board has expressed the view that "the retention in the Public Service Act of section 66 with its summary dismissal provision is not appropriate". The Royal Commission in its report published in 1976 did in fact recommend the deletion of this provision from the Public Service Act.
16. 319. In the second place, continued the complainants, in the absence of the Commonwealth Employees (Employment Provisions) Act Australian government employees would be liable to be stood down only after the employer had applied to the relevant arbitral authority for the insertion of a stand down clause in the award or determination and arguments from the parties had been heard. Under the Act these procedures do not apply. Unless there is an express provision in a contract of employment or award to the contrary an employer does not have any common-law right to stand down or suspend an employee.
17. 320. Quoting a number of authorities on Australian labour law, the complainants added that in the Federal Republic sector the arbitral power of inserting a stand down clause in an award would be exercised either by the Public Service Arbitrator or the Conciliation and Arbitration Commission. According to the complainants the insertion of stand down clauses was not taken lightly by the Commission. The complainants cited a number of Commonwealth arbitration cases in support of this assertion.
18. 321. The complainants stated that there also exists within the established arbitral machinery an internal appeal procedure to a full bench of the Commission against the decision of an individual commissioner under section 35 of the Conciliation and Arbitration Act. Similarly, there is an appeal against the decision of the arbitrator or a deputy arbitrator under section 15(c) of the Public Service Arbitration Act.
19. 322. On the face of it, continued the complainants, the decision of an employing authority, or a minister directly it, to suspend, dismiss or stand down Commonwealth employees is absolutely final. The complainants did not think that the employee could have any right of appeal through common law or through the ombudsman since the Ombudsman Act, 1976, specifically excludes from the ombudsman jurisdiction matters dealt with in the Commonwealth Employees (Employment Provisions) Act, 1977.
20. 323. Concerning the possibility of appeals through common-law procedures, the complainants stated that it was their understanding that such procedures involve application to the Supreme Court or the High Court and are limited to a review of the legal correctness of the decision being questioned and do not go into its merits. Such an expensive and complex procedure of appeal which excludes a review of the merits of a decision is not in the opinion of the complainants - if in fact they are feasible at all - an appropriate method of recourse for an employee with an industrial grievance.
21. 324. The federal law provides also for two other general review mechanisms. These are the Administration Appeals Tribunal Act, 1975 (as amended by Act No. 58 of 1977) and the Administrative Decisions (Judicial Review) Act, 1977. According to the complainants, the latter Act had not been proclaimed at the time of drawing up the complaint and is apparently concerned only with the legal correctness of decisions and not their general merits. The Administrative Appeals Tribunal Act as amended allows a review of any decision of a minister or official exercising statutory powers only where the relevant statute provides for appeal to the Tribunal (section 25). The Commonwealth Employees (Employment Provisions) Act, 1977, makes no such provision.
22. 325. The complainants added that a third implication of the Act for established public service employment relationships is that it permits direct ministerial intervention in ordinary personnel management matters, that is disciplinary matters and stand downs in which a minister previously had no power. Under section 10 of the Act which allows specification of a "class of employees" to be affected by suspension, dismissal or stand down there exists a potential for victimisation of groups of employees by a minister that has not previously existed.
23. 326. In the view of the complainants, the Commonwealth Employees (Employment Provisions) Act is an unprecedented piece of industrial relations legislation in Australia. Its wide provisions for the pre-emption of the established arbitral machinery and for the exercise of ministerial discretion make it an objectionable enactment, particularly as its provisions are directed at employees engaged in what is generally accepted as legitimate trade union activity. The complainants considered that the Act in no way ensures adequate safeguards of the interests of Australian government employees potentially subjected to its intimidatory provisions.
24. 327. The complainants added that the Commonwealth Employees (Employment Provisions) Act provisions which make it possible to (without notice, without time limit and without appeal) stand down, suspend or dismiss Australian government employees, operate in relation to Commonwealth employees engaged in "industrial action" as defined in section 3 of the Act. Thus all conceivable types of concerted action in which employees could engage, not merely strikes alone, will render the employees concerned liable to being stood down, suspended or dismissed. This is, according to the complainants, without any reference to any criterion of the "essential" nature of their functions. It is also important to note that employees are liable to be stood down, suspended or dismissed whilst still performing the essential duties of their jobs merely because they have banned the performance of minor duties as part of an industrial action.
25. 328. The complainants stated that individually and collectively through the Council of Australian Government Employees Organisations has vigorously sought the repeal of the Commonwealth Employees (Employment Provisions) Act. Their efforts have been without success. The complainants stated that they merely sought to assert the right of their members and of Australian government employees in general to press an economic claim or express a grievance in the defence and furtherance of their legitimate interests without being subjected to capricious and intimidatory legislative restrictions. In their view the provisions of the Act effectively deny that right.
26. 329. In its reply dated 21 August 1978, the Government points out that at the time the complaint was lodged the legislation at issue, namely the Commonwealth Employees (Employment Provisions) Act, 1977, had not been proclaimed; it has not been proclaimed subsequently. The Government points out that when introducing the Bill in the House of Representatives the Minister for Employment and Industrial Relations expressed the Government's hope that it would not be necessary to proclaim the legislation. Proclamation of the legislation, states the Government, is not a step which the Australian Government will take lightly and it reiterates its hope that such action will not eventuate. The Australian Government believes that the complaint of the union is without substance. Further it is of the view that in the event of circumstances arising which would force the proclamation of the Act nothing in its substance or in its practical application could reasonably be construed as being in conflict with Convention No. 87.
27. 330. The Government explains that it has been concerned for some time about serious disruptions to the community arising from industrial action taken by certain small groups of commonwealth employees. The dispute between the Australian Postal Commission and the Australian Postal and Telecommunications Union to which reference is made in the union's complaint was one such instance. As regards these disputes which have taken place, the Government states that every available measure was taken to settle the disputes through established, speedy and impartial conciliation and arbitration machinery, the efficacy of which was not drawn into question in the complaint. In each instance, however, continues the Government, there has been a refusal by the union or a section of the union concerned to follow established procedure on in the event of failure of conciliation and arbitration proceedings, to abide by the arbitrated awards which bind all the parties to the dispute.
28. 331. The Government points out that the scope of the public sector in Australia, while being an important area of employment is narrower than in many other member States. Although the Government in Australia is not involved to any significant extent in industrial and manufacturing activities, nevertheless the Commonwealth is involved in the provision of commercial services to industry and the community through its air and sea transport operations. Public involvement has developed in these areas on account of the costs of establishment and operation of such services. The scope of Federal Government is further limited by the Constitution which broadly restricts it to functions of an inter-state, national or international character. For instance, except for Australian Capital Territory, Commonwealth employees are not involved in the provision of community services such as gas, electricity and water. These services are provided by local and/or state government authorities. Within the scope of Federal Government, however, certain activities, because of the geographic and demographic characteristics of the continent, assume particular significance. Mention has already been made of air and sea transport services; postal and telecommunications provide another such example. About 40 per cent of Commonwealth employees are engaged in this or a related activity. Broadly speaking, the Government continues, the services provided are of an essential character it was in this context, explains the Government, that it was forced to seek means whereby it could have access to reasonable legislative powers to counter unnecessary and disruptive industrial action by Commonwealth employees, particularly when such action by-passes established industrial machinery.
29. 332. The principal instrument of industrial legislation in the federal jurisdiction in Australia is the Conciliation and Arbitration Act, 1904. This provides the legislative framework under which the rates of pay and working conditions of employees are regulated. A large number of Commonwealth employees as defined in the Act have their pay and conditions of work determined under this principal industrial act. For the large part, however, Commonwealth employees have their rates of pay and conditions of work determined under the Public Service Arbitration Act, 1920. Both these statutes, explains the Government, depend for their operation on a system of voluntary registration whereby organisations of workers or employers must decide whether the benefits obtained by registration justify the acceptance of obligations arising there from.
30. 333. According to the Government a considerable amount of voluntary negotiation between the employers and employees over terms and conditions of work takes place both outside and within the ambit of federal and state industrial relations. In law and in practice, compulsory arbitration is a last resort which should only be turned to after every effort has been made to settle differences and reach agreement by way of negotiation and conciliation subject to the need to have regard to the public interests.
31. 334. The Government states that the fullest possible use of negotiation and consultation between employers' and workers' organisations in the determination of pay and conditions of work and in the settlement of industrial disputes arising there from remains the policy of the Australian Government both in respect of wage and salary earners generally and in respect of its own employees. The provisions of the Act if proclaimed would in no way preclude the full use of the procedure outlined in the preceding paragraph. The Government states that as a matter of principle it would not, if the Act were proclaimed, bring it into operation except in extreme cases. Only where there was a steadfast refusal to abide by the outcome of established procedures under the Conciliation and Arbitration Act or the Public Service Arbitration and where industrial action was pursued Which threatened or caused serious disruption to the effective functioning of Government and the essential services it provides to the community would recourse to the Act to be contemplated. The Government emphasises that even in the face of recent incidences of industrial action by Commonwealth employees which have disrupted the operations of the Commonwealth Employment Service and further disrupted mail services it has refrained from proclaiming the Act.
32. 335. In relation to the procedures for the standing down of employees who are engaged in industrial action or who cannot be gainfully employed, the Government explains that the principles and procedures governing such situations are basically similar under the Conciliation and Arbitration Act and the Public Service Arbitration Act. Under both statutes, the employer may apply to the relevant arbitral authority for the inclusion of the provision in the award or an order which would authorise the standing down of an employee. In the public sector such an order will be granted only if deemed wanted by the Public Service Arbitrator after consideration of the arguments of the parties. Stand-down provisions affecting Commonwealth employees exist in a number of determinations and awards.
33. 336. The Government states that procedures for the suspension and dismissal of Commonwealth employees permanently employed under the Public Service Act place such public employees in a privileged position compared to persons privately employed. The procedure$ reflect a concern that adequate safeguards are provided to Commonwealth employees to protect their individual rights and that they enjoy security of employment. At the same time procedures with respect to stand-down, suspension and dismissal make available to employers in the public and private sector the means of adequately protecting, as the case may be, the public interests or the private interests of employers.
34. 337. The Australian Government reiterates that in the event of proclamation of the Act existing machinery of the nature outlined above would not be by-passed. Only in instances of flagrant abuse by Commonwealth employees of their privileged position would use of the Act be considered. In any event, explains the Government, it is not its intention that the Act should apply to cases of individuals acting alone whose actions could be interpreted as falling within the definition of industrial action under section 3. In cases of this kind, the provisions of the Public Service Act would continue to apply.
35. 338. The Government adds that in the event of the Act being implemented appeal procedures are available to persons so affected, The Administrative Decisions (Judicial Review) Act, 1977, which will come into force in the near future will apply. This Act, explains the Government, gives the Federal Court of Australia power to review decisions of an administrative character made or proposed to be made or required to be made under an enactment. The Review, explains the Government, does not go to the merits of the decision. The Government also draws attention to section 8 of the Act under which suspended employees may be reinstated or employees whose services have, in the public interest, been terminated may have such termination revoked by the Minister or by the employing authority.
36. 339. The Government states that the Commonwealth Employees (Employment Provisions) Act applies to Commonwealth employees generally. No distinction is made in its application between essential and non-essential services. According to the Government, this reflects the common approach that has been developed for the public sector and the private sector for the setting of wages and working conditions through the prevention and settlement of industrial disputes. The Government points out that the Australian system of conciliation and arbitration is predicated on the desirability of channelling such conflict into the procedures prescribed with a view to minimising the damaging economic and social effects of industrial action. The fact remains, however, that in the public sector, by virtue of the nature of the service provided, industrial action can have severe effects on the well-being of the community. The Government concludes by stating that in framing legislation to cope with frequent occurrences of industrial action in essential services it has been mindful of the need to encourage the full utilisation of available machinery for the prevention and settlement of industrial disputes and to its obligations arising from its ratification of Convention No. 67. The Government does not accept that the Commonwealth Employees (Employment Provisions) Act in any way infringes upon the freedom of Commonwealth employees to organise themselves and to defend and pursue their occupational interests. The system of conciliation and arbitration fosters the organisation of representative bodies of employers and employees and their voluntary registration under the Conciliation and Arbitration Act. The protection given to representative organisations under this legal framework and the procedures for the resolution of industrial disputes it makes available continue to enjoy the support of all parties to industrial relations and the vast majority of Australians. It is widely recognised that this system treats all equally and that claims are resolved with a maximum of expedition and a minimum of legal form and technicality.

B. B. The Committee's conclusions

1. 340. The Committee notes that the legislation to which the complaint relates, namely the Commonwealth Employees (Employment Provisions) Act, 1977, not having been proclaimed, has not yet come into operation. The Committee, nevertheless, considers it appropriate to make the following observations in connection with the new legislation.
2. 341. The main purpose of the Act is to make provision for the suspension, standing down or dismissal of Commonwealth employees who are engaged in or affected by industrial action. Industrial action is broadly defined in the Act to mean (a) the performance of work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work, the result of which is a restriction or limitation on, or a delay in, the performance of the work; (b) a ban, limitation or restriction on the performance of work or on acceptance or offering for work; or (c) an unauthorised failure or refusal by persons to attend for work or an unauthorised failure or refusal to perform any work at all by persons who attend for work.
3. 342. The Committee notes that industrial relations in the public sector are presently governed by the conciliation and Arbitration Act, 1904, and the Public Service Arbitration Act, 1920. Under this legislation elaborate conciliation and arbitration procedures are laid down for the settlement of industrial disputes. It is, according to the Government, because of disregard for these procedures and of the awards made under them and as a result of the ensuing industrial action by Commonwealth public employees that the Commonwealth Employees (Employment Provisions) Act has been rendered necessary. The Committee, however, notes in this connection that the Government has expressed its hope that it will not be necessary to proclaim this new legislation.
4. 343. The Committee has also examined the provisions of the Administrative Decisions (Judicial Review) Act, 1977, which, once it comes into force, will give the Federal Court of Australia power to review decisions of an administrative character made or proposed to be made or required to be made under an enactment. According to the Government, the Act will be applicable to decisions made under the Commonwealth Employees (Employment Provisions) Act. The Committee, however, notes that while any person adversely affected by a decision may apply to the Federal Court of Australia for a review of the decision, such review will not involve an examination of the substance of the case.
5. 344. The Committee has previously stated that recognition of the principle of freedom of association in the case of public officials does not necessarily imply the right to strike. The Committee has also agreed that the right to strike could be restricted or even prohibited in the civil service or in essential services because a strike there could cause serious hardship to the national community. The Committee, however, has stressed the importance which it attaches, whenever strikes in essential services or in the civil service are forbidden or subject to restriction, to ensuring adequate guarantees to safeguard to the full the interests of the workers thus deprived of an essential means of defending their occupational interests; it is also pointed out that the restrictions should be accompanied by adequate, impartial and speedy conciliation and arbitration procedures in which the parties can take part at every stage and in which the awards are binding in all cases on both parties; these awards, once they have been made, should be fully and promptly implemented.
6. 345. The Committee notes that no allegations have been made concerning the guarantees and the conciliation and arbitration procedures provided for under the existing legislation. The Government for its part has emphasised that the procedures under the existing legislation will continue to be fully employed and that recourse to the new legislation will be strictly limited to cases of an exceptional nature.
7. 346. The Committee would point out, however, that from an examination of the provisions of the Commonwealth Employees (Employment Provisions) Act, 1977, it would appear that there is nothing to prevent the Government, at its sole discretion, invoking the Act at any time and in any circumstances involving industrial action by Commonwealth employees. The Committee would also point out that there is no provision in the new Act which would appear to require that the existing machinery for the settlement of disputes be exhausted before the new Act is invoked. Public employees suspended or dismissed for engaging in industrial action, or stood down because they are affected by such industrial action, would accordingly have no further recourse to independent and impartial machinery, or to the courts (except on points of law) for the adjudication of their cases. In the view of the Committee, there would appear to be a serious risk that the Commonwealth Employees (Employment Provisions) Act, 1977, in its present form, could be invoked by an employing authority without the procedures for the settlement of industrial disputes provided for under existing legislation being fully exhausted. Such action would not ensure adequate guarantees to safeguard the interests of the workers.
8. 347. The Committee has, in addition, stated that it is not convinced that legislation imposing punitive sanctions on public employees on account of their involvement in various forms of industrial action is either necessary or desirable. The Committee has previously pointed out that the imposition of sanctions on public servants on account of their participation in a strike is not conducive to the development of harmonious industrial relations.,
9. 348. In view of the foregoing principles and considerations the Committee expresses the hope that the Government will not find it necessary to proclaim the Commonwealth Employees (Employment Provisions) Act, 1977 in its present form.

The Committee's recommendations

1. 349. In these circumstances and with regard to the case as a whole, the Committee recommends the Governing Body:
   • (i) to draw the attention of the Government to the principles and considerations contained in paragraphs 344 to 346 above relative to the right to strike in the public service and in essential services;
   • (ii) having regard to the principles and considerations contained in paragraph 347 above concerning the imposition of sanctions on public servants and to express the hope that the Government will not find it necessary to proclaim the Commonwealth Employees (Employment Provisions) Act, 1977, in its present form;
   • (iii) to request the Government to keep it informed of further developments in the situation.