Rapport définitif - Rapport No. 204, Novembre 1980

Cas no 956 (Nouvelle-Zélande) - Date de la plainte: 04-MARS -80 - Clos

1. 165. The complaint of the New Zealand Federation of Labour (NZFL) was submitted in a letter dated 4 March 1980. The Government submitted its reply in a letter dated 16 September 1980.
2. 166. New Zealand has ratified neither the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Allegations of the complainant

1. 167. In its communication dated 4 March 1980, the NZFL alleges that sections 3 and 4 of the Fishing Industry (Union Coverage) Act, which became law on 30 November 1979, contravene the principles of freedom of association, in particular Article 2 of Convention No. 87.
2. 168. In New Zealand, the main legislation covering industrial relations is the Industrial Relations Act, 1973. This Act provides procedures and machinery for the registration of unions, for the resolution of conflicts over union coverage and for the scrutiny of union rules with various powers being vested in the Registrar of Industrial Unions and the Arbitration Court, the Minister of Labour only having the power to call compulsory conferences and other procedures to resolve conflicts which have arisen. Prior to the passing of the Fishing Industry (Union Coverage) Act, workers in the fishing industry were either covered by the provisions of the industrial Relations Act (by membership in an already registered union) or could bring themselves under the provisions of that Act by forming their own union and applying for registration, which application the Registrar was bound, subject to certain requirements, to accept. There was a right of appeal to the Court of Arbitration, an independent body whose members must take an oath of office before a judge.
3. 169. The complainant states that, under the new Act, all workers in the fishing industry are stripped of their membership in any existing union and are therefore denied the statutory protection accorded by the Industrial Relations Act and the terms of any collective agreements under which they work (section 3 of the new Act). Furthermore, only one new union may be formed in the fishing industry at the discretion of the Minister of Labour and this union may not amalgamate with another union or become a member of an industrial association (section 4). The Minister shall not give his consent unless, inter alia, "in his opinion the registration of the society or the amendment of the rules will assist in the establishment or maintenance of harmonious industrial relations within the fishing industry" (section 5).

B. The Government's reply

1. 170. The Government stresses in its reply that historically the fishing industry in New Zealand has operated with a very limited degree of union involvement, as fishermen have worked on a partner-ship or catch share basis without a master-servant relationship. The Government explains that recently the Waterside Workers' Union has claimed coverage of the work of unloading one vessel and the Seamen's Union has expressed interest in the manning of fishing vessels. Consequently, the Act in question was passed to protect the traditional rights of fishermen to man and unload vessels.
2. 171. The Government points out that the Act defines the fishing industry in a fairly restrictive way in terms of the traditional domain of fishermen, i.e. to load, man and unload fishing vessels and process the catch on board; it does not include on-shore processing of the catch, transporting the catch outside wharf limits and the loading of a catch on to a ship for export, which are areas of traditional union involvement. The legislation excludes existing registered unions from coverage of workers in the thus-defined fishing industry, and the rules of existing unions are amended to exclude from their scope workers engaged in it. Finally, the Government states that the Act makes provision for the registration of a union representing workers in the fishing industry and the Minister's consent is required before an application for, registration can be made (the bases for refusal are specified in the Act: section 5(l)).
3. 172. The Government states, on the other hand, that if the existing unions had responsibility for work in the fishing industry this would arguably have created conditions inconsistent with, Convention No. 87. A case for example is that of the Waterside Workers, Unions which, under the Waterfront Industry Act, are placed in a privileged position in respect of any rival organisation.
4. 173. Lastly, according to the Government, the new Act does not restrict the rights of workers engaged in the fishing industry, to establish organisations of their own choosing, it merely regulates the registration of any union of such workers under the Industrial Relations Act. The act of registration is not a prerequisite to any union exercising bargaining rights. The Government submits that the Fishing Industry (Union Coverage) Act does not constitute a move away from the principle of freedom of association contained in Convention No. 87.

C. Conclusions of the Committee

1. 174. This case concerns allegations that the Fishing Industry (Union Coverage) Act of 30 November 1979 firstly denies workers in the fishing industry their right to belong to existing unions and thus to benefit from any collective agreements which might exist to cover them, and, secondly, allows for only one new union to be formed in this industry at the discretion of the minister of Labour.
2. 175. Regarding the first allegation, the Committee notes the Government's reply that the legislation was adopted with the view of preserving this traditionally non-unionised area of activity and was limited, by definition, to a certain group of fishermen. Thus, section 3(1)(a) of the new legislation expressly deems to be amended the membership rules of every existing union which covered such workers so as to exclude them the Committee would like to recall that one of the fundamental principles of freedom of association for workers' organisations is that they should have the right to draw up their Constitutions and rules without interference from the public authorities. Amendment of their rules is a concomitant right which should be only subject to the approval of the union membership itself.
3. 176. Furthermore, in connection with this first allegation, the Committee notes that section 3(1)(c) of the new legislation expressly terminates any award or collective agreement so far as it relates to the workers employed in the fishing industry as defined by the Act in this connection, the Committee would point out generally the importance of the principle that governments should encourage and promote collective bargaining which is recognised as a legitimate means for workers to further and defend their rights.
4. 177. Secondly, in relation to the allegation that only one union may be registered to cover workers in this particular area of the fishing industry, the Committee notes that the Government admits that this has been introduced to promote the establishment of a rational union structure, i.e. a single industry-based union. The Committee would like to recall the importance of the principle that workers and their organisations without distinction whatsoever should be able to establish and join organisations of their own choosing and considers, as it has in the past, that a situation in which an individual is denied any possibility of choice between different organisations, by reason of the fact that the legislation permits the existence of only one organisation in the sphere in which he carries on his occupation, is incompatible with the principles of freedom of association.
5. 178. In addition, regarding the minister of Labour's discretion, the Committee has stated in the past that the principle of freedom of association might very often remain a dead letter if employers and workers were required to obtain any previous authorisation to enable them to establish an organisation. In the present case, the Minister's discretion appears to go beyond mere formalities even though section 5(2) of the new legislation requires the Minister to consult with the New Zealand Federation of Labour regarding the giving of his consent before doing so.

The Committee's recommendations

1. 179. In these circumstances, the Committee recommends the Governing Body:
   • (a) regarding the exclusion by legislation of existing union coverage for workers who load, man and unload fishing vessels and process the catch on board,
   • (i) to point out that one of the fundamental principles of freedom of association is that workers' organisations should be able to draw up and amend their own Constitutions and rules;
   • (ii) also to recall generally the principle set out in paragraph 176 above that governments should promote and Encourage collective bargaining; and
   • (b) as regards the prohibition of more than one union to be registered for this category of workers,
   • (i) to draw the attention of the Government to the principles set out in paragraph 177 above that workers without distinction whatsoever should be able to establish and join organisations of their own choosing;
   • (ii) as regards the Minister of Labour's discretion in allowing an application for registration to be made, to draw the attention of the Government to the principle set out in paragraph 178 above concerning the nature of legislative requirements for registration of workers' organisation.