Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

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

The Committee notes the information provided in the Government’s report, and the decisions of various courts at state and federal levels. It further notes the comments of the Australian Chamber of Commerce and Industry (ACCI) and the International Transport Workers’ Federation (ITF) and requests the Government to provide its comments thereon.

Federal jurisdiction

1. The Workplace Relations Act, 1996. The Committee’s previous comments concerned the provisions of the Act dealing with the restrictions on the objectives of strikes, the prohibition of sympathy action and the restrictions on industrial action beyond essential services.

The Government reiterates its previous comments as follows:

-  as regards multi-employer agreements, the Act itself does not prohibit strike action; it confers immunity from tort liability in respect of certain industrial action in support of claims for proposed certified agreements and Australian workplace agreements (AWAs); this immunity can be described as a right to strike as it creates a right to take certain forms of industrial action without sanction. The requirement that certain conditions be met in order to attract the immunities is compatible with the Convention; the current conditions are reasonable and appropriate in the overall national industrial relations context. Extending protection to action associated with the negotiation of multi-employer agreements would discourage workplace-level agreements and could potentially encourage disputes about matters extraneous to the parties, over which they have no power to agree;

-  as regards strike pay, the prohibition in the legislation merely reflects the common law rule that denies remuneration to workers who do not perform the work required by their contract of employment, as confirmed by national courts;

-  as regards industrial action threatening to cause significant damage to the economy and sympathy action, the termination or suspension of a bargaining period under section 170MW does not operate automatically and requires the exercise of a discretion by the Australian Industrial Relations Commission (AIRC), which must first identify whether one of a number of statutory criteria exist in the particular factual situation and then decide whether to exercise its discretion to suspend or terminate the bargaining period, as shown by a number of such decisions by the AIRC; conciliation and arbitration procedures are then available to the parties.

Noting with regret that the Government states that no legislative reform is proposed, the Committee recalls that: workers’ organizations should be able to take industrial action in support of multi-employer agreements; providing in legislation that workers cannot take action in support of a claim for strike pay is not compatible with the Convention; prohibiting industrial action that is threatening to cause significant damage to the economy goes beyond the definition of essential services in the strict sense of the term. In the case of the latter restriction, however, the Committee has considered that, in order to avoid damages which are irreversible or out of proportion to the occupational interests of the parties to a dispute, as well as damages to third parties, namely the users or consumers who suffer the economic effects of collective disputes, the authorities could establish a system of minimum service in services which are of public utility rather than impose an outright ban on strikes. The Committee requests once again the Government to amend the provisions of the Act, to bring it into conformity with the Convention.

2. Trade Practices Act, 1974. Secondary boycotts. In its previous comments, the Committee noted that section 45D, as amended, continued to render unlawful a wide range of boycott activity directed against persons who are not the employers of the boycotters and that breach of this provision could be sanctioned by severe pecuniary penalties, injunctions and damages. The Committee recalls once again that a general prohibition on sympathy strikes could lead to abuse and that workers should be able to take such action, provided the initial strike they are supporting is lawful. Noting that the Government has set up a committee of inquiry for the review of the competition provisions of the Act, the Committee requests that the Government keep it informed of the results of that review, which it hopes will take the above principles into consideration. The Committee again expresses the firm hope that the Government will amend the legislation accordingly, and requests that it continue to provide information on the practical application of the boycott provisions of the Act. The Committee also requests that the Government provide in its next report its observations concerning the comments of the International Transport Workers’ Federation.

3. Crimes Act, 1914. The Committee’s previous comments concerned the repeal of the provisions of the Act banning strikes in services where the Governor-General had proclaimed the existence of a serious industrial dispute "prejudicing or threatening trade or commerce with other countries or among the states" (section 30J), and prohibiting boycotts resulting in the obstruction or hindrance of the performance of services by the Australian Government or the transport of goods or persons in international trade (section 30K). The Government reiterates that, since no action has been taken under these provisions for over 40 years, amending the Crimes Act would be given low legislative priority. The Committee notes this information, reiterates its hope that the Government will take measures to amend this legislation, and requests the Government to keep it informed of developments in this respect.

State jurisdictions

Queensland. In its previous comments the Committee had noted that section 638 of the Industrial Relations Act, 1999 provides that an organization may be deregistered if its members are engaged in industrial action that prevents or interferes with trade or commerce. The Government states that the powers under section 638 would be used only in extreme circumstances and that no action has been taken under this provision. The Government considers that this provision establishes a fair balance between its obligations under the Industrial Relations Act and the organization’s right to take industrial action. Recalling that this provision results in a prohibition of strikes going beyond essential services in the strict sense of the term, the Committee requests that the Government amend this provision.

South Australia. In reply to the Committee’s previous comments concerning section 222 of the Industrial and Employees Relations Act, 1994 (secondary boycott provisions), the Government mentions that the Act is currently the object of a legislative review, which includes in its terms of reference the appropriateness of integrating international labour standards within the South Australian legislation, and that the Committee’s comments on section 222 will be considered as part of that review. The Committee requests that the Government keep it informed of developments in this respect.

Northern Territory and Victoria. The Committee also notes that pursuant to the Northern Territory (Self-Government) Act, 1978, and the Victorian Commonwealth Powers (Industrial Relations) Act, 1996, the Federal Workplace Relations Act, 1996, is the principal legislation applying in the Northern Territory and Victoria. The Committee again requests that the Government take measures to have these state legislations amended in the light of the corresponding comments concerning the Federal Workplace Relations Act, 1996.