Direct Request (CEACR) - adopted 1991, published 78th ILC session (1991)

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

1. The Committee notes the Government's report, and the decision of the Committee on Freedom of Association in Case No. 1511 (277th Report, approved by the Governing Body at its 249th Session (February-March 1991), paragraphs 151-246). It also notes the comments of the International Organisation of Employers in its communication of 26 November 1990.

2. Section 118 of the Industrial Relations Act. In its 1989 direct request the Committee noted that section 118 of the Industrial Relations Act 1988 (IR Act) enabled the Australian Industrial Relations Commission (AIRC), in the context of a "demarcation dispute", to direct that a specified union should no longer have the right to represent the industrial interests of its members for the purposes of the IR Act. The Committee considered that this provision might have the effect of denying workers the right to establish and join organisations of their own choosing as guaranteed by Article 2 of the Convention. It asked the Government for its comments on this issue, and also to supply information as to the number and effect of orders under section 118.

In its report the Government states that the Industrial Relations Legislation Amendment Act, 1990 repealed the original section 118 with effect from 1 February 1991, and replaced it with a revised section 118 and an entirely new section 118A. Subsection (1) of this latter provision allows for the making of the same orders as the original section 118(3), but without the requirement that there be a "demarcation dispute". The Government also indicates that the constitutionality of the original section 118 is presently subject to a High Court challenge, although it is not entirely clear whether this matter will proceed in the light of recent legislative changes.

The Committee notes the information provided by the Government. It asks it in its next report to provide an up-date of the information relating to the number and effect of orders under section 118A. It also asks the Government to advise it as to the outcome of the High Court challenge to the constitutionality of the original section 118.

3. Civil liability in respect of industrial action. In its 1989 direct request the Committee noted that trade unions and their members and officials do not appear to have any protection against common law liability in respect of industrial action. This seemed to have the consequence that workers and unions who engaged in industrial action were liable to be sued for damages by employers or other parties who suffered loss as a result of their actions, and to be restrained from committing unlawful acts by means of injunctions. This appeared to the Committee to deny workers the right to take industrial action to protect and to promote their economic and social interests. The Committee had asked the Government to provide factual information as to the numbers and outcomes of common law actions against unions and their members and officials in recent years, and to indicate the manner in which it proposed to provide some measure of protection against these common law liabilities.

The Committee notes that in Case No. 1511, the Committee on Freedom of Association also expressed its concern at the scope of the common law liabilities which appear to attach to industrial action in Australia.

In its report the Government provides details of ten cases where employers had recourse to the common law between 1988 and 1990. Injunctions were issued in at least six of these cases, and were refused in two. Damages of $A6.48 million were awarded in one case (which formed part of the basis of the complaint in Case No. 1511), and have been awarded but not not assessed in another.

The Government states that it considers that it is undesirable that industrial disputes should become the subject of proceedings in the ordinary courts of law, and that the appropriate fora for dealing with such matters are the specialist industrial tribunals established for that purpose. This explains why, when it introduced the Industrial Relations Bill in 1987, the Government had attempted to place some restrictions on access to common law injunctions in certain circumstances. These proposals were strenuously opposed by major employer groups and by the Parliamentary Opposition. This led the Government to conclude that it would not be practicable to proceed with these proposals at that time. Accordingly, when the Bill was reintroduced in 1988 these provisions were omitted. The Government indicates, however, that it remains of the view that industrial disputes should not be dealt with in the ordinary courts of law, and that consultation had recently commenced in the tripartite National Labour Consultative Council in an attempt to secure agreement to the adoption of a revised set of compliance mechanisms within the IR Act which were comprehensive, fair and balanced. In pursuing this objective, adherence to the principles of freedom of association would be a primary consideration.

The Committee trusts that these tripartite consultations will result in the adoption of enforcement mechanisms which respect the right of workers and their organisations to take strike action to protect and promote their economic and social interests (1983 General Survey, paragraph 200) - subject to those restrictions which have been considered by the Committee to be permissible (1983 General Survey, paragraphs 204-223). The present state of the law in Australia is not in conformity with these principles.

4. Section 45D of the Trade Practices Act. In its 1989 direct request the Committee noted that section 45D of the Trade Practices Act, 1974 rendered unlawful a wide range of boycott activity and most, if not all, sympathy action. The Committee considers that both of these forms of industrial action should be permissible in certain circumstances. For example, it should be possible to impose boycotts in relation to health and safety disputes on construction sites where there are several different employers or to disputes about the performance of work by employees of employer "A" rather than employer "B". As concerns sympathy strikes, the Committee recalls that more frequent recourse is being had to this form of action because of the structure or the concentration of industries or the distribution of work centres in different regions of the world. It should, therefore, be permissible for workers to have recourse to sympathetic action where the initial strike in respect of which such action is taken is itself a legitimate exercise of the right to strike. These considerations led the Committee to ask the Government to provide information as to the practical application of section 45D and its associated provisions, and to indicate whether it had any plans to amend the 1974 Act so as to bring it into conformity with the requirements of the Convention.

In its report the Government indicates that there have been almost 200 actions under section 45D since it was introduced in 1977. In 34 proceedings between 1988 and 1990, injunctions were issued in 15 cases, and were refused in only four. The remaining 15 cases were either pending at the time of the Government's report, or had been resolved by agreement of the parties. Many of the cases where injunctions were issued were also subsequently resolved by agreement. In no case during this period were damages awarded against a union under this provision. No monetary penalty (which in theory could amount to $A250,000) has ever been imposed in respect of breach of section 45D.

The Government indicates that it attempted to repeal this provision in 1984, but that the legislation was defeated in the Senate (of which the Government did not have control). It also attempted to restrict access to injunctive relief in respect of section 45D as part of the enforcement provisions of the 1987 Industrial Relations Bill. For the reasons set out above, the Government decided that it would not be prudent to proceed with those proposals at that time. Since it has no reason to suppose that the opposition parties or the major employer groups have changed their position in relation to this matter, the Government states that it has not taken further legislative action to implement its policy in relation to section 45D. It does not, however, indicate whether it has included this issue in the consultations on compliance mechanisms to which it referred in relation to access to the common law.

The Committee remains of the view that section 45D and its associated provisions render unlawful certain forms of industrial action which ought to be permissible. Accordingly, it calls upon the Government again to take steps to bring this legislation into full conformity with the requirements of the Convention.

5. Essential Services Act 1988 (New South Wales). In its report the Government indicates that in 1988 the Parliament of New South Wales adopted new legislation dealing with essential services in that State. This legislation enables the Governor (acting on the advice of the Government) to take a wide range of measures to prevent the disruption of essential services as defined. These include the outlawing of industrial action.

The Committee has always considered that it is permissible to curtail the right to strike in relation to services whose interruption would endanger the life, personal safety or health of the whole of part of the population - so long as appropriate guarantees are afforded to protect workers who are thus denied one of the essential means of defending their occupational interests. These should include access to adequate, impartial and speedy conciliation and arbitration procedures, in which the awards should in all cases be binding on both parties. Such awards, once rendered, should be rapidly and fully implemented (1983 General Survey, paragraph 214).

The definition in section 4(1) of the 1988 Act appears to go beyond this concept of "essential services". In particular, the Committee considers that "the production, supply or distribution of any form of energy, power or fuel or of energy, power or fuel resources", "the public transportation of persons or freight" and "a service comprising the supply of goods or services necessary for providing" any of the services enumerated in subsection (1) do not necessarily constitute services whose interruptions would endanger the life, personal safey or the health of the whole or part of the population. The Committee also notes that the power which is vested in the Governor by section 4(2) to declare "any service to be an essential service for the purposes of the Act" is not conditioned by reference to the life, personal safety or the health of the whole or part of the population. This leaves open the possibility that this power could be used in a manner which would not be compatible with the principles of the Convention.

The Committee notes that section 15 appears to provide for arbitration in relation to industrial disputes in essential services as required by the principles of freedom of association. However it also notes that section 17 of the Act provides for the cancellation of the registration of a trade union by order of the Governor on receipt of an appropriate certificate from the Minister, whilst section 18 provides for the amendment of union rules so as to terminate the membership of, and to exclude from membership, a particular group or description of members of a union.

The Committee considers that orders under sections 17 and 18 might be said to interfere with the right of workers to establish or join the organisation of their own choosing as guaranteed by Article 2 of the Convention, whilst orders under section 18 might constitute an interference with the right of organisations to draw up their constitutions and rules as guaranteed by Article 3.

The Committee invites the Government to draw these matters to the attention of the Government of New South Wales so that it may take the appropriate action to bring the provisions of the Essential Services Act into conformity with the principles of freedom of association. It also asks the Government to provide full details of essential services legislation which may be extant in other States, and within its own area of legislative competence.

6. Sections 189 and 193 of the Industrial Relations Act. By its communication of 26 November 1990 the International Organisation of Employers expresses certain concerns as to the compatibility of sections 189 and 193 of the IR Act with Article 2 of the Convention. This communication was sent to the Government for its observations on 4 December 1990. No such observations have yet been received. The Committee notes that these provisions are presently the subject of a complaint to the Committee on Freedom of Association. Accordingly, the Committee proposes to examine these provisions at its next meeting in the light of the Government's observations and the findings of the Committee on Freedom of Association.

[The Government is asked to report in detail for the period ending 30 June 1991.]