Definitive Report - Report No 244, June 1986

Case No 1345 (Australia) - Complaint date: 14-AUG-85 - Closed

1. 157. The Australian Building Construction Employees' and Builders' Labourers' Federation (BLF) presented a complaint of infringement of trade union rights in a communication dated 14 August 1985. The Government sent its observations in communications dated 18 February, 22 and 28 April and 2 and 20 May 1986.
2. 158. 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. The complainant's allegations

1. 159. The BLF - which claims a total membership of 41,000 in branches throughout Australia and 14,000 in the State of Victoria and which is registered under the Federal Conciliation and Arbitration Act, 1904 and recognised under the Victorian Industrial Relations Act, 1979 - alleges that, on 19 July 1985, the BLF (De-recognition) Bill was introduced in the Victorian Parliament. On 30 July it was passed and received royal assent, despite calls for debate of the Bill to be adjourned to allow fuller consideration of its provisions. It supplies a copy of the parliamentary debate of the Bill in which it is stated that the Bill does not just deal with the BLF but punishes all its members and individual workers. It also refers to the policy of the Australian Council of Trade Unions of opposition to de-registration as a mechanism for disciplining the trade union movement.
2. 160. The complainant criticises the following provisions of the Act: (1) the exclusion of BLF members from "public works" contracts; (2) the methods by which exclusion is enforced; (3) the removal of the BLF and its members from the protection of and participation in the state industrial relations system, as established by the Industrial Relations Act; (4) the restriction of the use of BLF funds or property by administrative decree.
3. 161. As regards (1) (the exclusion of BLF members from "public works" contracts), the BLF states that, by a combination of section 4 of the Act and the definition of "contract to which this Act applies" in section 3 of the Act, any contract for the provision of "public works" has an implied condition inserted into it whereby no member of the BLF will be engaged, or continue to be engaged, under a contract of employment for the purposes of such works. The BLF estimates that the contracts to which this Act applies amount to 30 per cent of all contracts for construction work performed by members of the BLF in Victoria. It fears that the Government will seek to extend the operation of this legislation beyond the sphere of state or "public works", in direct contravention of Article 1 of Convention No. 98. According to the BLF, this is a blatant act of anti-union discrimination against workers in respect of their employment, and also contravenes Article 2 of Convention No. 87 because the ability to establish, join and - by implication - continue to be a member of organisations of their own choosing is severely infringed when members of the organisation are excluded from work which would otherwise be open to them by reason of their union affiliation. The BLF also refers to Article 8(2) of Convention No. 87 because it considers that section 4 of the Act constitutes a law of the land which impairs the guarantees provided for in the Convention. In this connection, the BLF states that by extending the definition of a contract to which the Act applies to contracts entered into before the commencement of section 4, the Victorian Government has introduced an element of retrospectivity into the Act. The retrospective operation of legislation has long been held to be a principle inimicable to the operation of the Australian legal system, and is, according to the BLF, arguably in contravention of Article 3 of Convention No. 87. The basis for this proposition is that retrospective operation of such a provision necessarily involves an interference with the right of workers' organisations to organise their administration and activities and to formulate their programmes.
4. 162. As regards (2) (the methods by which it is sought to enforce the exclusion), the BLF states that the attempt by the Victorian Government to exclude BLF members from "public works" or state construction sites has been bolstered by a number of enforcement procedures applicable to both workers and employers alike. Section 8 of the Act provides for the use of statutory declarations to establish membership of the BLF or, more relevantly, to facilitate resignation of membership from the BLF. According to the BLF, in practice this will mean that anyone seeking work as a builders' labourer will be required to swear a statutory declaration that he is not a member of the union. The BLF fears that the Government may attempt to extend this practice to all building sites throughout the State, and it is the union's firm belief that the Government will seek to supervise this procedure with members of the police force. In addition, the BLF considers that, under section 5 of the Act, the State has a right to rescind the contract of a principal contractor if that contractor continues to employ BLF labour. The complainant states that, presumably, the right to rescission would arise even if the contractor was unaware of the union affiliation of his employees or mistakenly believes he had no BLF members on site. According to the BLF, the contractor would have no legal redress in such a situation because the most effective (and only) way he could seek to ensure a contract not liable to rescission is to subject an employee to the section 8 statutory declaration procedure. Moreover, under section 5(2) of the Act, if a principal contractor obtains the right to rescind against a subcontractor by reason of the latter's continued employment of BLF membership and chooses not to exercise that right, the State then becomes entitled to rescind the contract of the principal contractor. The BLF points out that the immunity from suit of the State or any other person or organisation likely to take action against a member of the BLF is the final "enforcement" procedure (section 9 of the Act). It considers that the exclusion from taking legal action or making a legal claim is perhaps the most fundamental step a government can take in ensuring that the law of the land impairs the guarantee of freedom of association, and that it is therefore a manifest contravention of Article 8(2) of Convention No. 87.
5. 163. As regards (3) (removal of the BLF and its members from participation in and protection of the State industrial relations system by section 6 of the Act), the BLF alleges that nowhere within the legislation itself is it spelt out why this protection is being withdrawn and that it has not been given a right to be heard regarding the cessation of its recognition or any right to challenge this cessation. It points out that section 56(2) of the Industrial Relations Act, 1979 provides for having the recognition of an association revoked:
   • "Section 56(2). Where it appears to the Commission upon application made by the registrar that an association recognized under this Act has failed to comply with an order of the Commission or of the chairman of a Board or has repeatedly engaged in conduct in disregard of the provisions of this Act the Commission may order that the recognition of the association be revoked and thereupon the association shall be deemed not to be recognised and not entitled to exercise any of the rights or enjoy any of the privileges of a recognized association."
   • It claims, however, that no attempt has been made to follow this procedure and that the legislative denial to the BLF of the protection of the State industrial relations system and the denial of a hearing under section 56(2) of the Industrial Relations Act constitutes a breach of the basic human right to present a case in answer to allegations.
6. 164. As regards (4) (restriction of the use of BLF funds by administrative decree), the BLF alleges that section 7 of the Act leaves the administration a right of seizure over the union's assets. According to the BLF, if the assets were seized this could mean the effective dissolution of the union by administrative authority; it thus alleges that Articles 3 and 4 of Convention No. 87 are violated by section 7 of the Act.
7. 165. Lastly, the BLF refers to the timing of the legislation, which coincided with the sentencing of the Victorian Branch Secretary and General Secretary of the union, Mr. N. Gallagher, to four years and three months' imprisonment for receiving secret commissions. It also coincided with union elections in the Victorian Branch of the BLF. The complainant considers that the adoption of the Act was thus an inducement not to vote for the current leadership, contrary to Article 3 of Convention No. 87 which guarantees to workers the right to elect their representatives in full freedom.
8. 166. In conclusion, the BLF mentions that the Federal Minister for Employment and Industrial Relations stated publicly, in July 1985, that federal legislation to de-register the BLF would be introduced in Federal Parliament around August 1985.

B. The Government's replies

1. 167. In its communication of 18 February 1986, the Government transmits the observations of the Victorian Government which stresses that it supports the standards set forth in Conventions Nos. 87 and 98, ratified with the agreement of all the States of Australia including Victoria. The Victorian Government does not believe that the BLF (De-recognition) Act, 1985, contravenes these standards. It also points out that most unions (including the BLF) operating in Victoria are affiliated to the Victorian Branch of the Australian Labour Party which is in power at the federal level and in Victoria.
2. 168. The Government explains the Australian industrial relations system which, by virtue of the division of powers under the Constitution, permits voluntary "registration" under the Federal Conciliation and Arbitration Act, 1904; in addition, workers' or employers' organisations can apply for coverage under state legislation, in the present case this being the Victorian Industrial Relations Act, 1979. It points out that the Victorian Act provides for the "recognition" of associations representing employers or employees as associations with respect to any trade or trades for which a conciliation and arbitration board has been set up under the Act. (These boards cover particular trades and may make enforceable awards applicable to all workers in the trade concerned not covered by awards made by the Federal Conciliation and Arbitration Commission or other tribunals). In 1982 the BLF applied for and was granted recognition under the Victorian Act with respect to various construction trades covered by the Builders' Labourers' Board. The Government stresses that recognition under the Victorian Act does not in itself confer legal personality on an association; it confers certain rights, including the following: to nominate members of conciliation and arbitration boards; to be kept informed of proceedings of its particular board; to appear before its board in any matter affecting the interests of the association's members; to enter into an agreement with an employer which is enforceable under the Act as an award; to apply to the chairman of a board for a meeting of that board; to apply to the Industrial Relations Commission for the making of an annual leave order. There are other unions in the building industry which are federally registered under the Conciliation and Arbitration Act, 1904, and recognised under the Victorian Act which have coverage of work coming within the constitution of the BLF.
3. 169. The Government traces the history of the BLF: it was first registered in 1911 under the federal legislation but de-registered for serious industrial misconduct in 1974 (the Government supplies a copy of the court decision to de-register the BLF in which several references were made to the union's threatening and intimidatory actions, including the deliberate destruction or damaging of property and mob violence by its officers and members); it was again registered in 1976 after giving certain undertakings as to its future industrial conduct, including minimising direct industrial action and using the conciliation and arbitration processes available under the federal Act; in 1981 the then Australian Government commenced de-registration proceedings under the federal Act, alleging a high level of industrial misconduct by the BLF, and was subsequently joined by the then Governments of Victoria, Western Australia, South Australia and the principal employers' associations. Following changes of government in the three States and at the federal level - bringing with it a change of approach to the problems posed by the BLF - they withdrew from the proceedings, which were formally terminated in 1984 when the employers' organisations also withdrew. The withdrawal of almost all the applicants had followed express undertakings by the BLF to improve its industrial conduct and to behave responsibly. The Government also points out that, parallel to the 1981 proceedings, the Governments of Victoria and Australia appointed a Royal Commission into the activities of the BLF, whose 1982 report of over 400 pages (copy supplied by the Government) severely criticised the BLF's attitude and actions.
4. 170. The Government states that, in mid-1984, building industry unions and employers agreed on a Memorandum of Understanding which included wide-ranging commitments on both sides designed to stabilise industrial relations in the building industry at the national level. The BLF signed the Memorandum (known as the Building Industry Agreement 1984-86) in October 1984 but, according to the Government, subsequently breached its undertakings, as it had breached those given in 1976 on its re-registration and those given when the 1981 de-registration proceedings were withdrawn. The Government supplies a long list of BLF misconduct (contempt of court, intimidation of employers and non-BLF unionists, violence and riotous behaviour, frustration or stoppage of concrete pours, damage to property, demand payments, invasion of premises and trespass) from 1977 through 1984 throughout Australia. From this list, it appears that the confederation to which the BLF is affiliated, the Australian Council of Trade Unions, did not condone several of these incidents and, indeed, intervened to avoid on-site violence by setting up demarcation panels. It was against this background that the Victorian Government enacted the BLF (De-recognition) Act, 1985, according to the Government, as a measure of last resort.
5. 171. The Government points out, however, that this 1985 State Act is directly dependent on initiatives taken in the federal jurisdiction, i.e., section 2 of the Act provides that the Act shall not be proclaimed before an order is made restricting the right of the BLF to represent employees in the State of Victoria under the federal Act or before its federal registration is cancelled. The federal Parliament adopted the Building Industry Act on 26 August 1985 to provide a mechanism whereby certain consequences can result, on grounds of public interest, in relation to the BLF's federal registration; such consequences include the cancellation of its registration or restriction of its right to represent employees as a federally registered union in parts of Australia. The Government stresses, however, that, under section 4 of the federal Act, no action may be taken until the federal Conciliation and Arbitration Commission holds a hearing (at which the BLF is entitled to appear) and a declaration is made that the union has engaged in industrial misconduct. Such proceedings were commenced in September 1985 (with the Governments of the States of Victoria and New South Wales, as well as the principal employer bodies supporting the application) and are presently continuing, with the participation of the BLF, before the Full Bench of the Commission.
6. 172. The second major legal argument of the Government is that, under section 2 of the BLF (De-registration) Act, its provisions do not operate until they are proclaimed (that proclamation must not be made before the union's position at the federal level is decided). The Government of Victoria has decided not to proclaim sections 4 (condition concerning at BLF labour implied in public works contracts) and 5 (remedy of rescission if section 4 is breached) in any circumstances, nor to proclaim section 7 (power to restrict use of BLF assets by order valid for six months) unless there is a serious likelihood that the rights of ex-members of the BLF are likely to be infringed. (The Government states that this reflects concern at the BLF's history of violence and intimidatory conduct.) In addition, the Act lapses one year after the date on which it received royal assent unless all the provisions of the Act have by then been proclaimed (section 11 of the Act). This means that, in view of the decision not to proclaim sections 4 and 5, the Act will expire on 30 July 1986. The Government also points out that, in any case, the remedy of rescission by the State of public works contracts when BLF members continue to be employed by contractors under section 5 is not automatic or obligatory; the Government of Victoria is empowered to let the public works contract run even if section 4 is breached. It also explains that the retrospectivity of section 4 is simply to enable the remedy provided for in section 5 to be available for existing as well as new contracts and that rescission is prospective in operation, not retrospective to the date of entering into a contract.
7. 173. As regards section 6 (exclusion of the BLF and its members from participation in the Victorian industrial relations machinery established by the Industrial Relations Act), the Government stresses that such exclusion would not affect the BLF's status or legal personality as an association, its administrative activities, its relations with its members, any rights it may have at common law or its right to negotiate with employers on behalf of its members (see the description of the functioning of the system set out in paragraph 12 above). It would also not affect the rights and entitlements of individual labourers. In any case, indicates the Government, the area of industry in which the BLF operates is predominantly within the coverage of the federal industrial relations machinery. According to the Government, section 6 was drafted to avoid an unacceptable situation in which the BLF, if federally de-registered or limited in its representative rights as a result of its industrial misconduct, could fall back on and use the state machinery while continuing to engage in such misconduct.
8. 174. As regards section 8 (statutory declaration that a person is not a BLF member), the Government states that since it is linked to sections 4 and 5, which will not be proclaimed, there will be no need for its proclamation. Moreover, it points out that this section does not require individuals to so declare, but provides that, if they do so, such a declaration shall be treated as conclusive; it denies that there will be police supervision of the making of declarations which would appear to imply some form of official intimidation.
9. 175. As for section 9 (immunity of the State, Minister, public statutory body or a contractor from suit), the Government stresses that such immunity applies only where the action concerned was done in good faith for the purposes of giving effect to the Act; any act done without these preconditions would not be protected by section 9. In any case, the Government states that section 9 only has practical operation in relation to sections 4 and 5 - which will not be proclaimed - and section 7 - which would only be proclaimed in the exceptional circumstances outlined above.
10. 176. In conclusion, the Government denies the allegation that the timing of the legislation had any connection with the BLF's internal elections or the prosecution of its General Secretary before the courts for offences under the Crimes Act.
11. 177. To its communication of 22 April 1986 the Government attaches a copy of the decision and declaration of the Full Bench of the federal Conciliation and Arbitration Commission, dated 4 April 1986, made pursuant to the federal Building Industry Act, 1985. In its conclusions the Full Bench states that:
    • "It has been established beyond question that the Builders' Labourers' Federation has rejected the standards of behaviour accepted by most trade unions in Australia. The Federation has no standards as that word is commonly understood, but reacts to events according to the view taken at the time by the Federal Management Committee. Instead of a national policy designed to advance the interests of the members, the Federal Management Committee is addicted to slogans, such as "Dare to struggle, dare to win", "Most harm to the boss, least harm to the members" and "An injury to one is an injury to all".
    • It is under such archaic banners that the Federal Management Committee has waged its campaigns, leading the rank and file from one disaster to the next. The efforts of the leaders have caused hardship to other workers and aroused the hostility of the other building unions. (...) the excesses of the leadership have taken the Federation so far outside conventional trade union activity that it has been expelled by the Labour Council of New South Wales. As our review of the evidence has shown, the activities of the Federation have brought extensive dislocation to the building industry.
    • The case against the Builders' Labourers' Federation is overwhelming."
12. 178. The Government states that, following the declaration, the federal Government has legislated to de-register the BLF as an organisation covered by the federal Conciliation and Arbitration Act. It adds that the union still retains legal personality and may operate outside the conciliation and arbitration system.
13. 179. To its communications of 28 April and 2 May 1986, the Government attaches copies of the BLF (Cancellation of Registration - Consequential Provisions) Act and Regulations - adopted on 14 and 16 April respectively - and the BLF (Cancellation of Registration) Act of 14 April. The Government points out that, under section 5 of the Consequential Provisions Act, the BLF, being a non-registered workers' organisation, is not entitled to apply for registration under the basic federal legislation for a period of five years after the commencement of the BLF (Cancellation of Registration) Act. According to the Government, both Acts have been challenged by the BLF in the High Court of Australia as to their unconstitutionality and proceedings are expected to commence on 15 May 1986. The Government also includes a copy of the Victorian Gazette Notice of 14 April 1986 proclaiming all sections of the State BLF (De-recognition) Act except sections 4, 5 and 7.
14. 180. In its letter of 20 May 1986, the Government indicates that, on 15 May, the High Court rejected the complainant union's application to have its deregistration declared unconstitutional.

C. The Committee's conclusions

1. 181. This case concerns the enactment by the State Government of Victoria of the BLF (De-recognition) Act 1985, which aims at removing the complainant union and its members from the advantages provided by recognition under the State Industrial Relations Act, 1979 and banning BLF members from work covered by public works contracts (i.e. financed by the State Government). The 1985 Act is dependent upon certain action against the BLF at the federal level. The federal Government enacted the Building Industry Act as the first step in this process and, following completion of the judicial proceedings under that Act, adopted a specific de-registration Act. The Committee notes that, according to the Government, this legislative action was necessary in view of the BLF's continued industrial misconduct (violence, intimidation of employers and non-BLF unionists, breach of formal undertakings concerning its behaviour) as described in the recent independent Royal Commission Report.
2. 182. First of all, the Committee observes that the subject of this complaint - the Victorian BLF (De-recognition) Act - only came into force on and therefore can only be used as from 14 April 1986, for two reasons: its section 2 links its operation directly to proceedings at the federal level (conciliation and arbitration hearing and declaration as to BLF misconduct; order to the Registrar to de-register the BLF) and section 11 links its entry into force to proclamation of all sections. As to the first reason, the Committee observes that, on 4 April 1986, the Full Bench of the federal Conciliation and Arbitration Commission concluded its hearing and made a declaration pursuant to the federal Building Industry Act attesting to the industrial misconduct of the BLF, and that the federal Government consequently legislated on 14 April 1986, to de-register the union. On the second point, the Committee notes that, since the Government of Victoria has proclaimed all but three sections of the State Act, the legislation in question will expire on 30 July 1986 (section 11).
3. 183. The Committee notes that the consequences of the Act cancelling the registration of the BLF are two-fold: (1) the BLF, now a non-registered workers' organisation, cannot apply for re-registration at the federal level for five years; (2) workers involved in various construction tasks are, under another Act laying down regulations to be applied under the principal Act, eligible for membership of various other federally registered unions. The Committee also notes that the BLF challenge concerning the constitutionality of both federal Acts was rejected by the High Court.
4. 184. As regards the provisions of the Victorian legislation specifically impugned by the complainant, the Committee notes the Government's explanation of the rights and duties conferred on workers' organisations upon recognition under the basic State legislation (the Industrial Relations Act) and the results of de-recognition, which are outlined in section 6 of the BLF (De-recognition) Act. This section, it should be noted, is the principal operative provision now in force under the proclaimed 1985 Act. It is clear that non-recognition in the Victorian industrial relations system does not affect a union's existence or functioning; it cannot be seen as dissolution or suspension or affecting in any way the legal personality of a union. Although de-recognised, the BLF can still bargain with employers. On the other hand, de-recognition removes from the BLF and its members the important benefits which the legislation confers on a recognised union.
5. 185. The Committee also notes that the Government relies on the BLF's past history (de-registered at the federal level in 1974 and de-registration proceedings again initiated in 1981 although later withdrawn) and the findings of the independent Royal Commission as justification for its legislative intervention. The Committee has stated in the past that events of an exceptional nature may warrant direct intervention by a government in internal trade union matters in order to re-establish a situation in which trade union rights are fully respected (see 112th Report, Case No. 554 (Brazil), para. 138 and 158th Report, Case No. 818 (Canada/Quebec), para. 222). In the present case, it notes that detailed evidence has been presented by the Government concerning the industrial and criminal misconduct of the complainant union including incidents not condoned by the central trade union organisation to which the BLF is affiliated. The Committee is of the view that exceptional circumstances have been proved to exist and that these were sufficient to warrant intervention by the authorities to put an end to the violence and industrial strife for which the union had been shown to be responsible. In addition to certain action taken under the ordinary criminal law against some BLF leaders and members the authorities chose to enact legislation to de-register the union at the federal and state levels. The Committee considers that, in the exceptional circumstances that prevailed, this additional sanction may have been justified.
6. 186. The Committee notes that, although the BLF cannot be re-registered at the federal level for the next five years, there is no such time limit at the State level; by virtue of section 6 of the State Act it appears that the BLF cannot apply for re-registration between the date of commencement of the Act, i.e. 14 April 1986, and its automatic cessation on 30 July 1986, but thereafter may do so. The Committee considers that de-registration measures, even when justified, should not exclude the possibility of a union application for registration to be entertained once a normal situation has been re-established.
7. 187. Apart from the de-recognition section of the 1985 State Act, the Committee notes that other provisions of the Act would involve other serious consequences for the BLF and it members. As regards sections 4 and 5 which permit rescission of public works contracts if BLF members are engaged or continue to be engaged on work covered by such contracts, the Committee notes that the result of these provisions in practice would be that a worker who admits to BLF membership would be excluded from all public works sites, whereas non-BLF workers, unionised or not, would not be so excluded. According to the BLF, these provisions violate Article 2 of Convention No. 87, and Article 1 of Convention No. 98. The Committee notes that the provisions alleged to be discriminatory against the complainant union and its members are contained in the 1985 Act which has only been partially proclaimed; these provisions do not therefore as yet apply in practice. It also notes that the BLF itself estimates that the public works contracts which would contain a provision excluding its members cover 30 per cent of construction work contracts performed by the BLF in Victoria. In other words, BLF members could still work in the State on other sites but the complainant fears that the 1985 Act might be extended to these other contracts. The Committee notes, however, the Victorian Government's decision not to proclaim sections 4 and 5 of the Act in any circumstances.
8. 188. However, the Committee observes that, if these sections were to be proclaimed, all BLF members would be affected by being excluded from public works contracts because of the misconduct of some BLF officials and because of the union's behaviour as an organisation (e.g. breach of understandings it had signed). The Committee has always considered that no person should be prejudiced in his employment by reason of his trade union membership or legitimate trade union activities. This does not necessarily imply, however, that the fact that a person holds trade union office confers on him immunity irrespective of the circumstances. The facts of this case show that some form of disciplinary measure was necessary as regards the misconduct at various levels of the BLF hierarchy, but the Committee does not consider that the application of serious sanctions involving the entire membership of the union would be either fair or in the best interests of industrial peace. The union itself is sanctioned by losing the advantages of being recognised under the Industrial Relations Act and it appears that the principal office-holder was sentenced under the State Crimes Act. The Committee accordingly considers that sections 4 and 5 of the 1985 Act would, if proclaimed and applied, cause unfair prejudice to BLF members in their employment solely because of their union membership contrary to Article 1 of Convention No. 98.
9. 189. As regards the allegation that section 7 of the Act violates Articles 3 and 4 of Convention No. 87 by permitting the Governor in Council, for the purpose of protecting the rights of persons who have ceased to be members of the BLF, to restrict the use of BLF funds or property by an order valid for six months, the Committee notes the Government's explanation that this reflected concern at the BLF's history of violent and intimidatory conduct. It notes in particular that the Government has decided to proclaim this section only in extreme circumstances because of a serious threat to the rights of ex-BLF members, and that the partial proclamation of the 1985 State Act did not include this section.
10. 190. The Committee would first point out that the circumstances in which the powers to restrict the use of BLF funds or property would be exercised are not precisely set out in the provision in question. The Committee would, however, recall that while interference by the authorities in the internal affairs of a union may be justified in exceptional cases, there should be judicial control of the internal management in order to ensure an impartial and objective procedure. The Committee considers that such judicial control is particularly important in regard to the administration of trade union property and finances. The Committee accordingly can only express the hope that the "exceptional circumstances" referred to by the Government as justifying a possible proclamation of section 7 will not arise, thus leaving the BLF free to organise its administration and activities and to formulate its programmes in accordance with Article 3 of Convention No. 87. The Committee also considers it appropriate to recall that while Convention No. 87 confers important rights on workers' and employers' organisations it also provides that these organisations, in exercising these rights, shall respect the law of the land.
11. 191. The complainant has also made allegations concerning section 8 (statutory declaration procedure) and section 9 (immunity of the State or other persons from suit). The Committee notes that these provisions are linked with sections 4 and 5 of the Act which the Government undertakes not to proclaim. This link means that although sections 8 and 9 are in force now that they are proclaimed, they will not have any effect in practice. The Committee does not consider, in the circumstances, that it needs comment on these provisions at this stage, given the Government's commitment not to proclaim sections 4 and 5.
12. 192. Finally, the Committee hopes that the Government will do its utmost to ensure that now that the BLF (De-recognition) Act, 1985 has been partially proclaimed, measures will be taken to guarantee to the workers concerned in this case the rights contained in the freedom of association Conventions ratified by Australia.

The Committee's recommendations

1. 193. In these circumstances, the Committee recommends the Governing Body to approve this report, and in particular, the following conclusions:
   • a) The Committee notes that the Victorian Building Construction Employees' and Builders' Labourers' Federation (BLF) (De-recognition) Act, 1985, has now come into force following the adoption of legislation at the federal level, and that the BLF's challenge concerning the constitutionality of the federal legislation was rejected by the High Court.
   • b) The Committee is of the view that the de-recognition of the complainant union by virtue of the Victorian BLF (De-recognition) Act and the BLF (Cancellation of Registration) Act (federal), given the exceptional circumstances of the case, does not bring into question the principles of freedom of association.
   • c) The Committee considers that, if the provisions of the Victorian State legislation concerning exclusion of BLF members from construction sites covered by public works contracts were proclaimed and applied, this legislative exclusion of members of the complainant union would cause unfair prejudice to BLF members in their employment contrary to Article 1 of Convention No. 98.
   • d) As regards the possibility of administrative interference in union assets, the Committee considers that judicial control is particularly important in regard to the administration of trade union property and finances in order to ensure an impartial and objective procedure.
   • e) The Committee draws the complainant's attention to Article 8(1) of Convention No. 87 which provides that workers and their organisations shall respect the law of the land.
   • f) The Committee hopes that the Government will do its utmost to ensure that measures will be taken to guarantee to the workers concerned in this case the rights contained in the freedom of association Conventions ratified by Australia.