Report in which the committee requests to be kept informed of development - Report No 254, March 1988

Case No 1415 (Australia) - Complaint date: 28-MAY-87 - Closed

1. 255. In communications dated 28 May, 16 and 30 June 1987, the Customs Officers Association of Australia (COAA) presented allegations of violations of trade union rights in Australia. The COAA supplied further information in support of its complaint on 27 July and 30 October 1987. The Government supplied its observations in a communication dated 25 January 1988.
2. 256. 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); it has not ratified the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainant's allegations

1. 257. In its communication of 28 May 1987, the COAA explains that on 19 December 1986 the Conciliation and Arbitration Commission refused to allow an amendment to the COAA's registration under the Conciliation and Arbitration Act, 1904, so as to enable it to continue to represent customs officers. The Commission recommended that the customs officers join the Administrative and Clerical Officers Association (ACOA).
2. 258. The complainant claims to represent 1,350 workers, being one-third of Australia's customs officers and half of those who have chosen to be members of a workers' organisation. It points out that it has not proceeded with an appeal to the High Court against the Commission's decision because the ruling was taken in virtue of the Commission's discretionary power under the Act and because the lack of domestic law specifically relating to ILO Conventions Nos. 87 and 98 rules out a higher review of the law. In any case, states the COAA, the employer (the Australian Customs Service (ACS)) continued to recognise it as representative of customs officers, as it had done since the COAA was founded in 1914.
3. 259. However, according to the COAA, on 25 May 1987 the Comptroller General of Australian Customs, the head of the ACS, advised it and all staff that, in view of the December 1986 decision, it would henceforth: terminate the current consultative arrangements with the COAA on industrial matters; terminate privileges of workplace facilities for COAA officials (including time off for meetings, membership and recruitment activities, distribution of literature, use of telephones, photocopying and typing resources, etc.); refuse entry to COAA officials to work areas on Association activities; maintain the existing decision excluding COAA officials from access to training courses; and terminate arrangements for COAA representatives on staffing and other similar committees.
4. 260. The COAA states that these changes deny customs officers freedom of association and forces them, if they wish to dialogue with the employer, to join an organisation which has no community of interest with them and their profession. The changes are also causing hostility between customs officers and other government employees involved in the administration of customs services.
5. 261. In its communications of 16 and 30 June 1987, the COAA relies on a similar situation which involved the Northern Territory Public Service Commission and the corresponding employees' association in 1984. Following the Freedom of Association Committee's recommendations, the Australian Federal Government upheld the provisions of the relevant ratified Convention and directed the employer to allow the association involved to represent those employees who wished to join it.
6. 262. In its communication of 27 July 1987, the COAA stresses that, since the December ruling, it is outside the formal framework of conciliation and arbitration (except for the registration it retains to represent 200 navigational aid/lighthouse officers); its only means of negotiating employment conditions for customs officers is through collective bargaining, but the ACS has refused to bargain. From an attachment to the COAA's communication it appears that the COAA had raised the possibility of negotiations with the Public Service Board and received the following reply: The Board does not believe it is appropriate to negotiate with one union about matters when it is another union's right to have those provided for by awards of the Conciliation and Arbitration Commission. Accordingly the Board is not prepared to negotiate with your Association independently on pay and conditions matters for Customs Officers classifications which could be the subject of award coverage. Nor as a matter of policy does it accept that staff occupying the same employment classifications might have basic conditions which are different depending on the union to which they belong. This would be the basis on which we would approach any discussions with you and deal with representations from you about matters affecting your members in the workplace.
7. 263. Moreover, adds the complainant, in a press release handed out in May 1987 announcing the ACS's change in policy towards COAA, it states that the ACS can only discuss industrial issues with unions having legitimate coverage of customs officers, namely the ACOA. But, according to the complainant, COAA members are loath to relinquish their current membership so as to join the ACOA because of ideological and philosophical differences between the two organisations (e.g. the COAA is not politically aligned whereas the ACOA is; the COAA has spoken out on law enforcement and community protection issues whereas the ACOA has argued against its ideas). The COAA states that because of the unique role of customs officers in the public service, such workers do not wish to be locked into a broad-based industrial structure whereby they could be used as a powerful tool during industrial disputes; the COAA offers those workers independent autonomy but the ACOA does not. Lastly, the COAA mentions that a further dissuasion from joining the ACOA is the fact that its dues are 25 per cent higher than COAA dues, and that the ACOA makes no concession for low-income members whereas the COAA has special arrangements to assist them (i.e. 5 per cent of its members of low income have their fees paid from existing Association funds and therefore do not appear on payroll deduction statistics).
8. 264. According to the COAA, faced with no conciliation and arbitration coverage, and no collective bargaining, it tried nevertheless to have the currently existing awards applied to customs officers (the two awards are: the General Conditions of Service Award for Public Servants and the Customs Officers Award). However, the ACS and the Public Service Board refused to negotiate any further application of them to COAA members. The employer in fact went further than simple refusal to recognise any representations by the COAA: it used the media extensively to advise that the COAA no longer represents customs officers and this led to a withdrawal of support by bodies which had purchased advertising space in the COAA's monthly journal. The complainant states that it has consequently been forced to reduce the journal's publication to every other month. More importantly, continues the COAA, after the adverse publicity, about 100 of its members resigned (they have apparently not joined the ACOA).
9. 265. The complainant states that it has applied again to the Conciliation and Arbitration Commission for registration to cover customs officers and has asked the Administrative Appeals Tribunal for a determination of the lawfulness of the ACS's decision to disallow any COAA representations. In addition, the complainant has written to the Prime Minister and other relevant ministers for support. Although sceptical that the Commission will allow registration of the COAA to cover customs officers, it is actively seeking amalgamations with other unions sharing the COAA's interests and attitudes to law enforcement. It stresses that there can be no suggestion of a proliferation of unions covering the same class of employee, namely customs officers: the COAA has been representing such officers for 73 years (although the classification "customs officer" was only created in November 1983 when there was a restructuring of the customs service). It is only asking for its present registration to extend to customs officers as had previously been the case. If this is refused it only wants to be able to represent its own members for collective bargaining purposes.
10. 266. In its letter of 30 October 1987, the COAA alleges that the ACS, other unions and the government authorities concerned are deliberately avoiding consultations with it in an effort to frustrate any solution to this complaint before the Governing Body Committee on Freedom of Association.

B. The Government's reply

1. 267. In its letter of 25 January 1988, the Government firstly explains the Australian federal industrial relations system which provides conciliation and arbitration for the prevention and settlement of industrial disputes through the Conciliation and Arbitration Commission and to which access is gained by the voluntary registration of employers' and employees' organisations. It points out that the COAA is registered under this system and thus is subject to the same rights and obligations as any registered organisation, namely: the requirement that organisations have rules specifying, by reference to their work, the persons who are eligible for membership in that organisation and apply to the Industrial Registrar for permission to change these rules; the right to object to other organisations being registered with coverage of those workers coming within the objecting organisation's "eligibility for membership" rule; the right to object to other organisations amending their membership rules to obtain such coverage; the right to have such objections heard by the Industrial Registrar and to appeal to the Commission.
2. 268. This membership rule is important, states the Government, because a registered employees' organisation is able to make demands on employers in relation to all persons who are eligible to be members of the organisation concerned, whether or not such persons are in fact members. The Commission deals with such claims by conciliation or arbitration and may make binding awards in relation to them. Where an award is made, the organisation has an enforceable right of entry under the Conciliation and Arbitration Act to an employer's premises to ensure that the award is being observed. The Commission may not, however, exercise jurisdiction over a matter if it involves employees who are not eligible for membership of the registered organisation party to that matter.
3. 269. The Government states that, under rule 5 of the registered rules of the COAA, membership of that union is open to the following persons: Any person engaged permanently or temporarily in the Fourth Division of the Trade and Customs Department and in the Department of Health, and any of the following persons: a) member of a lighthouse station or on the store staff, lighthouse branch: b) member, including the radio-telegraphist, of the crew of the lighthouse vessels; c)master or member of the crew of the launch, marine branch; d)inspector of seamen; e)as assistant, dairy export, lighthouse inspector ... all of the Commonwealth Public Service, upon payment of the prescribed contributions and dues, shall be entitled to become members of the Association.
4. 270. The Government describes the restructuring of customs activities in Australia in November 1983 which led to the abolition of some, and creation of new classifications of customs officers. This restructuring was followed on, in July 1984, by the abolition of the divisional structure in the public service; the COAA as is seen from its membership rule had covered Fourth Division public servants, whereas Third Division officers were predominantly covered by the ACOA. It adds that those Commonwealth public servants engaged in customs activities (over 5,000 throughout Australia) and employed by the ACS have the following responsibilities:
   • - community protection (because the ACS is the front line of defence against illegal imports and exports and controls the movement of people, goods, ships and aircraft into and out of Australia);
   • - industry assistance and development (because it implements many of the Government's measures such as tariffs, quotas, subsidies);
   • - revenue collection (because it collects customs and excise revenues for the Commonwealth Government);
   • - control at the customs barrier on behalf of other government departments and agencies, particularly in the areas of quarantine, fauna protection and immigration. It states that, following a number of competing claims by relevant federally registered unions (the COAA, the Administrative and Clerical Officers Association, the Australian Public Service Association, the Federated Clerks Union of Australia) relating to employees in the new classifications (called customs officers and assistant customs officers), the Full Bench of the Commission found it necessary to decide whether they came within the "eligibility for membership" rules of the unions concerned. The matter came before the Commission in the Customs Case (a copy of which, dated 19 December 1986, is supplied) and the Full Bench decided, inter alia, that the COAA did not cover the new positions. The Government states that this was the second refusal of the COAA, because already in March 1984 (decision confirmed in July 1984) the COAA had lost an application to vary its membership rule. The Government adds that subsequently (in July 1985) the Administrative and Clerical Officers Association was successful in securing an award from the Commission covering the new classifications in the ACS.
5. 271. Following the distribution of information circulars to ACS staff about the Full Bench decision of 19 December 1986, the Comptroller-General wrote on 21 May 1987 to the Secretary of the COAA setting out management's position in relation to industrial dealings with COAA officials. A staff circular was issued in similar terms on 25 May 1987, namely those reflected in paragraph 259 above. The ACS has since then been dealing with other federally registered unions (particularly the Administrative and Clerical Officers Association) over industrial matters affecting ACS staff who are eligible for membership of the unions concerned.
6. 272. The Government explains that the question of the COAA's access to premises of the ACS and consultation with management was further considered and clarified in proceedings before the Commission in 1987 when a dispute arose between the COAA and the ACS over those issues. The Administrative and Clerical Offices Association and the Australian Public Service Association intervened. In a decision of 2 October 1987 (a copy of which is supplied), the Commission recommended that certain arrangements agreed to between the ACS and the COAA be implemented. These were that the COAA would be permitted access to persons employed as "Clerical Assistants, Grades 1-4", on the basis that such persons were in fact eligible for membership of the COAA. An existing award (No. 8 of 1926) applying to the COAA covers such grades. Final agreement has not yet been reached between the COAA and the ACS on the implementing of these arrangements. The Administrative and Clerical Officers Association has appealed against the decision, but the appeal has not been heard.
7. 273. According to the Government, the COAA has applied again to the Industrial Registrar for consent to alter its "eligibility for membership" rule so that it may enrol persons in the new classifications of customs officers and assistant customs officers. The application, dated August 1987, attracted some objections, and technical objections were heard on 27 November 1987. No decision has yet been given.
8. 274. As regards the complainant's description of the 19 December 1986 ruling refusing it coverage of customs officers, the Government points out that the COAA has not lost its registration and that its registered "eligibility for membership" rule is unchanged. The Government repeats that the structure of the ACS has changed and that all staff associations were consulted before the change occurred. This means that there is no change in the COAA's ability to represent its "industrial" members who are employees of the ACS within the COAA's membership rule, both before the Commission or in dealings with the management of the ACS, i.e. the limited class of lighthouse guards and other persons covered by Award No. 8 of 1926. However, there is also now a second type of member of the union - "non-industrial" members - who no longer comes within the COAA's membership rule but who have not left the union; they are free to remain members if they so wish.
9. 275. According to the Government, contrary to the complainant's assertion, the Conciliation and Arbitration Act does provide for a system of appeals. It explains that acts or decisions by the Industrial Registrar may be appealed to a Presidential Member of the Commission (who has judicial status) or to a Full Bench of the Commission; an order made by a single member of the Commission may be appealed to a Full Bench; there is no further appeal on the merits from a decision of a Full Bench but, under the Australian Constitution, errors of law (including determinations of the scope of an "eligibility for membership" rule) may be reviewed by the High Court of Australia by way of a prerogative writ. The Government believes that this system of appeals provides for a fair review of decisions made by the independent office holders and tribunals under the Act. It also points out that, the Commission having found that the COAA's rules do not cover the new classifications, it is open under the Act for the union to seek to alter its rules to gain such coverage, an action which has - as is pointed out above - been undertaken.
10. 276. As regards the alleged refusal of the ACS to engage in collective bargaining either directly with the complainant or before the Commission, the Government denies this and states that the employer is prepared to deal industrially with any union in relation to employees who come within the rules of the union and who are members of that union. Moreover, following the Commission's decision of 2 October 1987, the COAA's right to cover a limited class of employees of the ACS has been confirmed and the ACS is fully prepared to deal industrially with the COAA in relation to its members who come within that class. The Government adds that the ACS is also continuing to engage in normal industrial dealings with the other staff associations which represent ACS employees who come within their registered "eligibility for membership" rules. The particular group of employees at the heart of the COAA's complaint (customs officers and assistant customs officers) have been held to come within the coverage of the Administrative and Clerical Officers Association; that union has secured an award covering those classes of employees.
11. 277. On the question of access to ACS premises by union officials, the Government repeats that, under the Act, organisations have an enforceable right of entry to employers' premises to ensure the observance of awards to which the organisations are party; therefore, the COAA has this right in relation to the limited class of persons covered by the relevant award (No. 8 of 1926). The Government's policy is to facilitate access by union officials to members or persons eligible to be members; none the less, provision of such access in the case of the ACS must be balanced against the need to avoid disruption of work and the maintenance of customs security. The Government adds that, in the light of the clarification of the COAA's membership in the 2 October 1987 decision, the ACS will permit access by COAA officials to "industrial" members at the workplace during working hours on the same basis as for officials of other staff associations. This entails the following: prior notice of entry is necessary in normal circumstances; means for satisfying (if necessary) ACS managers that persons concerned are members; no disruption of operations; in normal circumstances, any meetings of members should occur during work breaks or outside normal working hours. The Government states that union representatives also have access to notice-boards and may distribute literature to members.
12. 278. In the case of the COAA's "non-industrial" members, states the Government, different considerations apply. The ACS recognises that, although these persons cannot be represented industrially by the COAA, they continue to have an interest in its affairs. Accordingly, access to such employees (including the distribution of literature to them) and the use of notice-boards are available. The ACS considers however that, although certain ACS facilities (e.g. reasonable use of photocopiers, telephones) should be available for union purposes in relation to industrial members, the same justification does not apply to "non-industrial" members. The position will, of course, be reconsidered when the outcome is known of the COAA's fresh application to the Industrial Registrar for consent to the alteration of its rules to cover the new classifications.
13. 279. As regards the alleged refusal to consult with the COAA, the Government does not believe that it has contravened ILO Conventions in this matter. It states that, as events have occurred, there have been appropriate communications between the COAA and the ACS, as well as other relevant representatives of the Government (i.e. the Public Service Board and, following its abolition, the Department of Industrial Relations).
14. 280. The Government denies the allegation that the ACS is forcing any of its employees to join the Administrative and Clerical Officers Association. It notes that this claim is in any case inconsistent with the assertion that the ACS is preventing unionisation of the staff of the ACS. On this latter point, the Government denies any prevention of unionisation in the ACS. It states that the fundamental difficulty faced by the COAA is that, under its existing rules, it is unable to admit as members employees in certain classifications in the ACS. The ACS has informed its employees of this position and indicated the consequences in terms of the industrial dealings between management and staff associations. There has not been any attempt to prevent staff from joining a union of their choice which has the right to represent them industrially. The Government also points out that the payroll deduction facility for union membership fees has been maintained for all staff associations, including the COAA.

C. The Committee's conclusions

1. 281. The Committee observes that this complaint involves alleged interference in the COAA which - as a result of a restructuring within the Australian Customs Service - finds itself no longer able to represent in industrial relations matters those ACS employees now classified as customs officers and assistant customs officers. (The position of the COAA as regards those ACS employees covered by a 1926 Award - referred to as "industrial" members of the union - is not at all at issue.)
2. 282. The Committee notes that those employees in the new classifications can (and apparently do) remain "non-industrial" members of the complainant union, and the Government continues to allow the COAA access to them, including distribution of literature, use of notice-boards and check-off arrangements. In addition, under the legislation in force, the employees involved can profit from the negotiations/awards won by the ACOA, which has the right to represent them industrially even if they are not members of the ACOA. It therefore appears to the Committee that the workers involved are not forced to relinquish union membership of their choice.
3. 283. The Committee also notes that it is not the COAA's existence which is questioned, but rather that the legal position (as reflected in the Commission's Full Bench decision of 19 December 1986) favours a rival union, the ACOA. On this point the Committee would stress, as it has in past cases, that it is inappropriate for it to examine the merits of conflicts between unions concerning their respective areas of competence. (See, for example, 25th Report, Case No. 152 (UK/Northern Rhodesia), para. 216.) In the present case the Committee would particularly refrain from entering into any debate as to the coverage of customs officers since the complainant union itself, in wishing to enjoy the advantages which voluntary registration under the Conciliation and Arbitration Act gives it, has accepted a certain degree of regulation, such as the role of the Industrial Registrar and the Commission in the amendment of "eligibility for membership" rules.
4. 284. As regards the ancillary allegations, namely that as a result of the decision on coverage of customs officers the complainant union has been denied various facilities and consultation rights which it had previously enjoyed and has even suffered financially (loss of advertising in its journal, loss of members), the Committee notes the information supplied by the Government. It observes that a Commission decision of 2 October 1987 concerning the very issue of rights of entry and consultation confirmed as "sensible and practical" the arrangements agreed on between the COAA and the ACS which enable that union to have access to a certain classification of employees in addition to its "industrial" members. When considered together with the information activities also permitted at the workplace in relation to the COAA's "non-industrial" members, the Committee is of the opinion that the current situation is not in breach of the freedom of association Conventions ratified by Australia.
5. 285. The Committee would recall that the earlier Australian case to which the complainant makes reference (Case No. 1241, 234th Report, paras. 329 to 342, approved by the Governing Body in May 1984) involved a different situation, namely that of a union pending its application for registration under the Conciliation and Arbitration Act in which all facilities were denied until it obtained registration.
6. 286. The Committee notes in conclusion that the complainant union has used - albeit unsuccessfully - the various procedures available to it to try to regain coverage of customs officers and that hearings on a fresh COAA application to alter its "eligibility for membership" rule were heard in November 1987. The Committee requests the Government to inform it of the outcome of this application, especially as regards its consequences, if any, on the current facilities' arrangements available to both "industrial" and "non-industrial" members of the COAA and its officers.

The Committee's recommendations

1. 287. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • a) The Committee considers that it is inappropriate for it to examine the merits of conflicts between two unions concerning their respective areas of competence.
   • b) It is of the opinion that there has been no breach of the freedom of association Conventions ratified by Australia by the current facilities' arrangements made available to the complainant union.
   • c) It requests the Government to inform it of any change in these facilities occasioned by the outcome of the complainant union's fresh application for coverage of the customs employees involved in this complaint.