Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Australia (Ratification: 1973)

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Legislative reform process. In its previous comment, the Committee requested the Government to provide information on any legislative developments or proposals concerning the industrial relations reform process. The Committee notes the Government’s indication that numerous industrial relations reforms were adopted since its last report. The Committee notes, in particular: (i) the adoption of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act, 2022 (assessed in more detail in its direct request); (ii) the adoption of the Industrial Relations and Other Legislation Amendment Act, 2022 (Queensland) (addressed in more detail in its direct request); (iii) the entry into force of the Human Rights Act, 2019 (Queensland), which protects freedom of association (section 22(2)) and also covers actions and decision-making of a public entity as an employer (section 58); (iv) the adoption of the Human Rights (Workers Rights) Amendment Act, 2020 (Australian Capital Territory), which introduces section 27B to the Human Rights Act, setting out the right to work and other work-related rights, including the right to form or join work-related organizations and trade unions; (v) legislative reforms in government procurement (Australian Capital Territory) aimed at including fair and safe conditions for workers and improving employment standards in procurement contracts; (vi) the adoption of the Union Encouragement Policy, 2018 (Australian Capital Territory) which details the Government’s commitment to encourage union membership among its workers in the public sector; and (vii) the adoption of the Public Health and Wellbeing Amendment (Pandemic Management) Act, 2021 (State of Victoria), allowing for rapid pre-emptive responses to protect public health. Taking note of these legislative reforms, the Committeetrusts that they will be applied in line with the Convention.

Article 3 of the Convention. Right of organizations to freely organize their activities and to formulate their programmes. The Committee previously requested the Government to review: (i) the provisions of the Competition and Consumer Act, 2010 prohibiting secondary boycotts; (ii) sections 423, 424 and 426 of the Fair Work Act, 2009 (FWA) relating to suspension or termination of protected industrial action in specific circumstances; and (iii) sections 30J and 30K of the Crimes Act, 1914, prohibiting industrial action threatening trade or commerce with other countries or among states, and boycotts resulting in the obstruction or hindrance of the performance of services by the Government or the transport of goods or persons in international trade, with a view to bringing them into full conformity with the Convention.

In relation to sections 30J and 30K of the Crimes Act, the Government reports that no changes were made to these provisions and no prosecutions were initiated.

Concerning the prohibition of secondary boycotts under the Competition and Consumer Act, the Committee notes the Government’s indication that the Australian Productivity Commission invited public comments on the issue and discussed it with the social partners, following which it did not recommend any changes to the legislation. The Government indicates that the Australian Chamber of Commerce strongly opposed any potential changes in this area and the Maritime Union of Australia did not support changes to these provisions or the supporting compliance and enforcement activities but considered the applicable penalties extremely onerous. The Committee further notes the Government’s indication that the relevant provisions were enforced on one occasion where a construction company and the Construction, Forestry, Maritime, Mining and Energy Union were both ordered to pay penalties for a boycott conducted in breach of competition laws.

While taking note of the above, in particular the limited use in practice of sections 30J and 30K of the Crimes Act and of the provisions of the Competition and Consumer Act prohibiting secondary boycotts, the Committee recalls that these provisions may nevertheless have a chilling effect on the right of workers’ organizations to organize their activities and carry out their programmes in full freedom. The Committee therefore requests the Government to bring the above-mentioned provisions into conformity with the Convention , in consultation with the social partners. The Committee further requests the Government to continue providing detailed information on the application of these provisions in practice.

With regard to sections 423, 424 and 426 of the FWA, which relate to suspension or termination of protected industrial action threatening trade or commerce with other countries or among states, the Committee notes the Government’s indication that it is not considering any reforms to the relevant provisions. The Committee further notes the information transmitted by the Government on the rationale of these provisions and on their practical application, in particular, that: (i) in 2022, there were three applications to suspend or terminate protected industrial action under section 423 and three applications under section 426; (ii) the Fair Work Commission (independent tribunal and statutory regulator of federally registered unions and employers’ groups) did not make any decisions in relation to sections 423 and 426 as all applications were withdrawn or discontinued, or orders were otherwise not required; (iii) there were 18 applications under section 424 in 2022 and 9 applications in 2023, with only one order to suspend or terminate an industrial action; (iv) from 2020 to 2023, the Fair Work Commission made decisions on section 424 concerning the railway sector (order to terminate an industrial action due to a threat to endanger the welfare of the population of New South Wales), an aircraft engineers union (application dismissed for lack of evidence on any threat to the life, personal safety or welfare of the population), a harbour towage enterprise (order to suspend an intended lockout of all harbour towage employees), the healthcare sector (order to suspend the intended industrial action for two weeks), a gas company (order to suspend a company lockout for 30 days), a transport workers’ union employed in court security and custodial services operations (order to suspend an industrial action for two months), a transport workers’ union (application to suspend the industrial action dismissed for lack of evidence on the link between the industrial action and the threat to life, safety and health or welfare of the population) and the maritime transport sector (discontinuance of the application for termination of an industrial action).

Taking note of the detailed information provided by the Government, in particular as to the practical application of the above provisions, the Committee observes that while some of the sectors fall within essential services in the strict sense of the term or concern public servants exercising authority in the name of the State, and suspensions or terminations of industrial action would therefore not raise issues of compatibility with the Convention, in other cases which do not fall within these categories industrial action should not be fully restricted, although the Government may consider the establishment of negotiated minimum services. In line with the above, the Committee requests the Government to continue to provide information on the practical application of sections 423, 424 and 426 of the FWA and to indicate any measures taken to review these provisions.

The Committee is raising other matters in a request addressed directly to the Government.