Interim Report - Report No 199, March 1980

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

1. 227. The complaint of the Administrative and Clerical Officers' Association (CPS) was examined by the Committee in November 1978 when it submitted definitive conclusions in paragraphs 302 to 349 of its 187th Report. The ACOA (CPS) communicated further allegations in a letter dated 17 October 1979 and the Australian Telecommunications Employees' Association (ATEA) presented similar allegations in a letter dated 27 November 1979. The Government transmitted its observations in a letter dated 21 December 1979.
2. 228. 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

• Previous examination of the case
  229. 229 In its complaint, presented in December 1977, the ACOA (CPS) stated that a dispute between the Australian Postal Commission and the Australian Postal and Telecommunications Onion had led to the introduction by the Government of the Commonwealth Employees (Employment Provisions) Act. The Act provides for the standing down, suspension or dismissal by any Commonwealth authority, or minister, of any Commonwealth employees engaged in industrial action. The complainant protested several aspects of the Act, including the broad definition of "industrial action", the discretion permitted for the giving of notice of suspension, the lack of entitlement to benefits normally payable to a suspended or stood-down employee, the broad discretion placed in an employing authority or a minister to dismiss employees, the overriding nature of any declaration or determination made under the Act and the lack of appeal provisions.
  230. 230 According to the complainant, the legislation makes no reference to any concept of "essential services" despite the fact that the Minister for Employment and Industrial Relations attempted to justify the Act in stating that government employees are responsible "for providing this wide range of services essential to the well-being of a modern-day community". 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". Moreover, the Act does not provide for any time limit on the operations of the powers prescribed by itself.
  231. 231 The Government replied that the Commonwealth Employees (Employment Provisions) Act had not yet been proclaimed and stated that proclamation was not a step which it would take lightly. Furthermore, it stated that if circumstances arose which would force the proclamation of the Act, nothing in its substance or its practical application could reasonably be construed as being in conflict with Convention No. 87.
  232. 232 The Government explained that it had been concerned for some time about serious disruptions to the community arising from industrial action taken by certain small groups of Commonwealth employees. It stated that every available measure was taken to settle the disputes through established, speedy and impartial conciliation and arbitration machinery but in each instance there had been a refusal by the union concerned to follow established procedure or, in the event of failure of conciliation or arbitration, to abide by the arbitrated awards which bind all parties to the dispute. Moreover, it stated that about 40 per cent of Commonwealth employees are engaged in activities which, because of the geographic and demographic characteristics of the continent, assume a particular significance of an essential character. Thus the Government was forced to seek means to counter unnecessary and disruptive industrial action by Commonwealth employees, particularly where such action by-passed established industrial machinery.
  233. 233 The Government stated that as a matter of principle it would not, if the Act were proclaimed, bring it into operation except in extreme cases, and added that appeal procedures would be available through the Administrative Decisions (Judicial Review) Act which would come into force up the near future. Moreover, the Government pointed out that the Commonwealth Employees (Employment Provisions) Act applied to Commonwealth employees generally, without distinction between essential and non-essential services, in line with the common approach that has been developed for the public and private sectors for the setting of wages and working provisions through the prevention and settlement of industrial disputes.
  234. 234 The Committee noted that the legislation to which the complaint related had not yet bean proclaimed, but considered it appropriate to make certain observations in connection with it. The Committee took note of the existing legislation which governs industrial relations and noted that the Government had expressed the hope that it would not be necessary to bring the legislation into force. It however noted that the Administrative Decisions (Judicial Review) Act, once it came into force, would not allow for an examination of the substance of the case on appeal. After recalling some principles on the right to strike of public officials, it stated the public employees suspended or dismissed for engaging in industrial action, or stood-down because they are affected by such industrial action, would have no further recourse to independent and impartial machinery for the adjudication of their cases because the new Act contained no provisions requiring exhaustion of the existing means of settlement before the new Act is invoked.
  235. 235 In addition, the Committee stated that it was not convinced that legislation imposing punitive sanctions on public employees on account of their involvement in various forms of industrial action was either necessary or desirable. The Committee had previously pointed out that the imposition of sanctions on public servants on account of their participation in a strike was not conducive to the development of harmonious industrial relations.
  236. 236 At its November 1978 Session, the Governing Body on the Committee's recommendation:
       • - drew the attention of the Government to the principles and considerations mentioned relative to the right to strike in the public service and in essential services;
       • - having regard to the principles and considerations mentioned concerning the imposition of sanctions on public servants, expressed the hope that the Government would not find it necessary to proclaim the Commonwealth Employees (Employment Provisions) Act, 1977, in its then form.
       • - and requested the Government to keep it informed of further developments in the situation.
  237. Further allegations of the complainants
  237. 237 In its letter of 17 October 1979, the ACOA (CPS) advises that on 13 July 1979 the Commonwealth Employees (Employment Provisions) Act was proclaimed without change. Op till then the Government had employed the threat of proclamation in an effort to deter public service unions from continuing their participation in legitimate industrial action, behaviour which, in the complainant's view, belied the Government's claim that it was emergency legislation only.
  238. 238 The complainant explains that in early 1979, the ATEA made a general claim for a 20 per cent wage increase upon the Australian Telecommunications Commission (Telecom), the statutory authority employing its members. According to the complainant, Telecom initially rejected the claim and refused discussions with the ATEA. Selective work bans were applied causing minimal inconvenience to the general public but adversely affecting the employer's revenue accounting systems. The employer notified the existence of a dispute to the Conciliation and Arbitration Commission which dealt with the matter in the first instance through a single judge, then through the Full Bench of the Commission and, upon determination of certain areas of the dispute, through an Arbitration Commissioner. The work bans were continuing, and by July 1979 had led to a gradual breakdown and reduction of services within the telecommunications network. Although the dispute was continuing before the Arbitration Commissioner and the prospects for settlement had improved considerably, the Government threatened to and finally did bring the new legislation into force.
  239. 239 In the three days following proclamation over 150 members of the ATEA were suspended under the Act. On 16 July the dispute was settled within the terms negotiated before the Arbitration Commissioner, the bans were lifted and the suspended members were reinstated.
  240. 240 The complainant also states that, on 7 June 1979, the Government enacted the Commonwealth Employees (Redeployment and Retirement) Act which led to the ACOA (CPS) instituting limited bans on the handling of ministerial correspondence and work stoppages involving absences from work of up to 24 hours. The central employing authority for the public service, the Public Service Board, sought and obtained from the Public Service Arbitrator, orders to stand-down those members involved in the industrial action and some 234 workers were stood-down between 17 July and 2 August 1979.
  241. 241 The complainant was granted a hearing before the Full Bench of the Conciliation and Arbitration Commission and the various bars were then lifted to allow the hearing to proceed. Prior to the granting of a hearing, the complainant goes or to state, the Government announced publicly that it was considering the use of its powers under the Commonwealth Employees (Employment Provisions) Act. This statement was made notwithstanding the fact that the dispute was properly before the Public Service Arbitrator and the fact that the effect of the bans could not be considered to constitute an emergency situation. According to the complainant, the bans were not operative against all ministers and the fact that of some 48,000 members of the ACOA (CPS) only 234 were stood-down demonstrates their limited scope.
  242. 242 The complainant concludes by stating that the Government's conduct during both the ATEA and its own dispute demonstrates ac intention to use the Act notwithstanding the fact that proper and satisfactory arbitral machinery is in operation and notwithstanding the recommendations of the Governing Body.
  243. 243 Lastly, the ACOA (CPS) states that the Government has unilaterally and without notice removed the facility of payroll deduction of members' subscriptions. That punitive action, states the complainant, now threatens the continued existence of the union.
  244. 244 In its letter of 27 November 1979, the ATEA gives the same explanation of events which led to the proclamation of the Act and states that the Government has failed to adhere to its policy, expressed to the Committee on Freedom of Association, that it would make the fullest possible use of negotiation and consultation in the settlement of industrial disputes, and in the event of proclamation of the Act, existing conciliation and arbitration machinery would not be by-passed by the Government.
  245. 245 The ATEA attaches to its letter extracts from the judgement of the Deputy President of the Conciliation and Arbitration Commission who heard the dispute between Telecom and the union at first instance, criticising the employer for its unwillingness to negotiate.
  246. 246 To the account given by the ACOA (CPS), the ATEA adds that suspended members were not directly advised that a declaration of suspension under the Act had been made in relation to them; notices of the declaration were posted at their place of work and in a number of instances after the members had gone home. Individuals were selected arbitrarily, states the complainant, and given no opportunity to defend themselves. It points out that the limited appeal provisions of the Administrative Decisions (Judicial Review) Act were not available to government employees as that Act was not yet proclaimed.
  247. 247 The complainant also refers to the Government's cessation of the check-off system. It supplies a copy of a letter from the Minister for Industrial Relations stating that "Depending on the circumstances, future strikes or industrial action will involve the risk that the payroll deduction facility may be withdrawn from the whole membership of the organisation (ACOA) in Commonwealth employment, or from particular branches or sections ". According to the complainant, such a threat is likely to lead to a worsening of the industrial environment in the government employment area.
  248. 248 Lastly, it states that proposed amendments to the Conciliation and Arbitration Act will undermine the role of the Conciliation and Arbitration Commission, will promote sanctions rather than negotiation to settle industrial disputes and will make it easier for employers to protect their interests through the system.
• The Government's reply
  249. 249 In its letter of 21 December 1979, the Government reports on developments as requested by the Governing Body and responds to the complaint by the ACOA (CPS). It stresses in particular that persons who might be affected by application of the Commonwealth Employees (Employment Provisions) Act would have recourse to conciliation and arbitration procedures; during the ATEA-Telecom dispute, before proclamation of the Act, during its application and at settlement, the established processes of conciliation and arbitration continued to operate.
  250. 250 The Government conveys a Report Concerning the Proclamation of the Act in which it outlines the Australian industrial relations system, the importance of telecommunications to Australian industry, commerce, government administration, defence and health and welfare of the general public and the events of the ATEA-Telecom dispute which led to the proclamation. It includes a statement by the Full Bench of the Commission handed down on 12 July 1979 commenting that "The gravity of this dispute has now increased. In view of the resolution by the executive of ATEA not to recommend the lifting of the bans at this stage and not to call meetings of members until 17 July the Full Bench is of the view that no further conferences should be held regarding the merits of the Association's claim until the bans are lifted... If ATEA elects to pursue the course of confrontation it, of its own action, will undo the progress which has been made and may imperil subsequent arbitration proceedings". The Full Bench also stated that it was wrong to say that Telecom had not entered into meaningful negotiations. The Government explains that at this stage of the dispute work bans had not only contributed to the breakdown of national and international dialling services, but had severely reduced the capacity of telex communications and had disrupted intra- and interstate broadcasting of radio and television programmes to the public. Faced with this disruption to the community which had been continuing for over five weeks, and the refusal to lift the bans even after warnings that the Act would be proclaimed and after a request from the Full Bench, the Government took this action, reserved for extreme cases.
  251. 251 The Government points out that the objective in proclaiming the Act was to enable Telecom to apply its provisions to bring about the speedy resolution of a not only serious, but apparently intractable, industrial situation in a way that would ensure that established industrial relations procedures and practices were observed. Consistent with this approach, the powers set down in the Act were applied in a most circumspect manner. Once settlement was achieved and all work bans were removed on 17 July, Telecom rescinded the action taken under the Act. It is the view of the Government that the application of the legislation was a major contributing factor to the resolution by the Commission of a grave and damaging industrial dispute and to the restoration of vital telecommunication services to the Australian community.
  252. 252 Lastly, the Government states that the ACOA (CPS) complaint does not distinguish between events surrounding the ATEA Telecom dispute and the events related to the dispute over the Commonwealth Employees (Redeployment and Retirement) Act, although this latter dispute did not flow from the Commonwealth Employees (Employment Provisions) Act. Nor did the Government's decision to withdraw the facility of payroll deduction of union subscriptions. The Government has not yet replied to the allegations concerning proposed amendments to the Conciliation and Arbitration Act.

B. B. The Committee's conclusions

• Conclusions of the Committee
  253. 253 The complainants in this case object to the proclamation and application of the Commonwealth Employees (Employment Provisions) Act, which the Committee in its previous examination of the case had hoped would not be proclaimed in its present form. The allegations also concern other anti-union legislation, namely, proposed amendments to the Conciliation and Arbitration Act, and Government withdrawal of check-off deductions.
  254. 254 Regarding the proclamation of the Act, the Committee notes that the complainants and the Government disagree as to whether an emergency situation existed due to the work bans imposed by the telecommunications workers. The facts leading up to the proclamation are not disputed, although it appears from the information available that despite a lack of negotiation at the commencement of the conciliation proceedings, settlement was reached with the full participation of both parties.
  255. 255 The Committee regrets that the established procedure and, in particular, negotiation between the parties could not settle the wages claim earlier on in the dispute before the seriousness of the situation led to the proclamation of the Act. In this respect, the Committee notes that the Government has supplied information on the serious disruption to the community and notes that it held off proclamation of the Act for over five weeks while trying other established means to settle the dispute. The Committee is fully aware that the continuance over five weeks of work bans in the telecommunications sector could bring about serious hardship for the national community and that such a situation could have forced the Government to take certain measures.
  256. 256 The Committee notes the Government's statement that there is nothing in the Commonwealth Employees (Employment Provisions) Act which precludes the operation of the long-established processes of conciliation and arbitration in Australia. It also notes that once a settlement was reached, declarations made under the Act were rescinded and all the suspended workers were reinstated. Moreover, the established processes of conciliation and arbitration were not by-passed, but were employed to the full right up to settlement of the dispute before an Arbitration Commissioner.
  257. 257 As regards the Government's removal of the check-off facility, the Committee notes that according to the complainants, this was done without notice and there have been threats from the Minister that such action will be taken again in the future in the Committee's opinion, the withdrawal of this facility, which could lead to financial difficulties for trade union organisations, is not conducive to the development of harmonious industrial relations and should therefore be avoided.
  258. 258 The Committee notes that the Government has not yet sent its observations on the allegations relating to proposed amendments to the Conciliation and Arbitration Act, and would request it to communicate them as soon as possible.

The Committee's recommendations

1. 259. In these circumstances, the Committee recommends the Governing Body:
   • (a) as regards the proclamation and application of the Commonwealth Employees (Employment Provisions) Act,
   • (i) to express its regret that the established procedure and, in particular, negotiation between the parties could not settle the dispute before the Government was forced to proclaim the Act;
   • (ii) to note the Government's statement that there is nothing in the Act which precludes the operation of the long-established processes provided for by the Conciliation and Arbitration Act and to express the hope that recourse to independent and impartial machinery will continue to be available;
   • (iii) to note that the continuance over five weeks of work bans in the telecommunications sector could bring about serious hardship for the national community and that such a situation could have forced the Government to take certain measures;
   • (b) as regards the removal of the check-off facility, to bring to the attention of the Government the considerations set out in paragraph 257 above;
   • (c) to request the Government to communicate its observations on the allegations relating to proposed amendments to the Conciliation and Arbitration Act as soon as possible;
   • (d) to take note of this interim report.