Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

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

The Committee notes with interest the general statement made in the Government’s report to the effect that the new Australian Government acknowledges that the aspects of federal workplace relations laws, previously commented on by the Committee, did not, in a number of important respects, meet the key requirements of ILO standards ratified by Australia relating to collective bargaining and freedom of association. These comments related primarily, but were not limited to, amendments made in 2005 to the Workplace Relations Act, 1996, (WR Act) by the Workplace Relations Amendment (Work Choices) Act, 2005 (Work Choices Act). The Committee also notes that: (i) a critical component of the new Government’s legislative programme is to enact new laws governing workplace relations in Australia, having due regard to the issues canvassed in the report of the Committee of Experts; (ii) the first stage of the Government’s legislative programme is now in place following the entry into force of the Workplace Relations Amendment (Transition to Forward with Fairness) Act, 2008 (Transition Act), on 28 March 2008; this Act amends the WR Act and provides for a measured transition to the Government’s new workplace relations system which will be fully operational from 1 January 2010; (iii) the substantive workplace relations reforms under development have been the product of extensive consultation and review by employer and worker representatives and subject to extensive parliamentary scrutiny. The Committee requests the Government to communicate with its next report a copy of any draft legislation under consideration in the framework of the substantive labour law reform, so as to examine its conformity with the Convention.

Article 3 of the Convention. Right to strike. The Committee’s previous comments concerned the need to amend numerous provisions of the WR Act with a view to bringing them into conformity with the Convention. The Committee had referred in particular to provisions which lift the protection of industrial action in support of: multiple business agreements (section 423(1)(b)(i)); “pattern bargaining” (section 439); secondary boycotts and general sympathy strikes (section 438); negotiations over “prohibited content” (sections 356 and 436 of the WR Act, in connection with the Workplace Relations Regulations, 2006); strike pay (section 508 of the WR Act); and provisions which prohibit industrial action in case of danger to the economy (sections 430, 433 and 498 of the WR Act), through the introduction of compulsory arbitration at the initiative of the Minister (sections 500(a) and 504(3) of the WR Act). Finally, the Committee had raised the need to amend section 30J of the Crimes Act, 1914, which prohibits industrial action threatening trade or commerce with other countries or among States and section 30K of the Crimes Act, 1914, 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.

The Committee notes from the Government’s report that the substantive workplace relations reforms under development for consideration by Parliament later in 2008 will provide for protected industrial action authorized by a secret ballot during bargaining for a collective enterprise agreement; the ballot process will be fair and simple. The Committee also notes, however, that according to a communication by the Australian Congress of Trade Unions (ACTU) dated 1 September 2008, the Government has indicated its intention to retain the existing provisions which prohibit secondary boycotts and make industrial action in favour of “pattern bargaining” (i.e. negotiations seeking common wages or conditions of employment for two or more proposed collective agreements with different employers or even different subsidiaries of the same parent company) illegal. The Committee hopes that the substantive workplace relations reform will address the need to bring law and practice into conformity with the comments made by the Committee on the points raised above. It requests the Government to indicate in its next report the measures taken in this regard.

Access to the workplace. In a previous direct request, the Committee had raised the need to lift the restrictive conditions set for granting a permit allowing trade union representatives to have entry to the workplace in order to meet with workers (sections 740, 742(1), (2)(b), (2)(d) and (2)(h)). The Committee notes the comments made by ACTU detailing the hurdles faced by unions in this regard and noting the intention of the new Government to retain the existing provisions.

The Committee recalls that the right of trade union officers to have access to places of work and to communicate with management is a basic activity of trade unions which should not be subject to interference by the authorities and should not be limited to communications with “eligible” employees, as trade unions should be able to apprise non-unionized workers of the potential advantages of unionization or of coverage by a collective agreement. The Committee therefore requests the Government to indicate any measures taken or contemplated to amend sections 742(1), (2)(b), (2)(d) and (2)(h) and 760 of the WR Act, so as to lift the restrictive conditions set for granting a permit giving right of entry to the workplace and ensure that the group of workers with whom a trade union representative may meet at the workplace is not artificially restricted.

Building industry. In its previous comments, the Committee, taking note of the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2326 (338th Report, paragraphs 409–457), had raised the need to rectify numerous discrepancies between the Building and Construction Industry Improvement (BCII) Act, 2005, and the Convention. The Committee had regretted, in particular, the declining rate of trade unionism in the industry which, in the Committee’s view, might not be unrelated to impediments placed over collective bargaining in the BCII Act.

The Committee recalls from previous comments that: (i) the BCII Act renders virtually all forms of industrial action in the building and industrial sector unlawful; (ii) introduces severe financial penalties, injunctions and actions for uncapped damages in case of “unlawful” industrial action; (iii) gives the enforcement agency known as the Australian Building and Construction Commission (ABCC) wide-ranging coercive powers akin to an agency charged with investigating criminal matters; (iv) grants the capacity to the Minister for Workplace Relations to regulate industrial affairs in the building and construction industry by Ministerial Decree through a device referred to as a building code which is inconsistent with the Convention on several points and is implicitly “enforced” through an “accreditation scheme” for contractors who wish to enter into contracts with the Commonwealth.

The Committee notes that according to the comments made by the ACTU in its communication dated 14 September 2007, the ABCC issued a fact sheet based on the building code which implicitly discourages trade union membership and encourages resignations from trade unions; moreover, the ABCC issued a “warning” against an employer that it might suffer a reduction in opportunities to tender for Government projects or be precluded from tendering for contracts for a period of time, if it continued to allow a union delegate, rather than site management, to conduct “staff inductions”. The Committee also notes that, in its comments dated 1 September 2008, the ACTU regrets that the new Government has given no indication that it is considering amending the BCII Act and that it has retained the ABCC with its powers and resources undiminished and its policy orientation unaltered. With regard to the steps taken to replace the ABCC with a “specialist regulator” as of 1 February 2010, the ACTU notes that it opposes in principle the granting of additional powers to a “specialist regulator”. It adds that it considers the existence of a separate set of industrial laws for a single industry to be contrary to the principle of treating all workers equally and fairly. The ACTU raises a number of serious concerns (inter alia, by citing statistical data) about the conduct of the ABCC, the activities of which appear to continue to be targeted against trade unions and workers. The ACTU also refers to heavy financial penalties imposed by the ABCC under the BCII Act (amounting to 1.2 million Australian dollars from October 2005 to May 2008). The ACTU finally refers to the prosecution by the ABCC of a trade union officer who risks up to six months imprisonment, without being the subject of any investigation, simply for having failed to appear before the ABCC to answer questions (s. 52(6), BCII Act). The Committee also notes the comments by the ITUC in a communication dated 29 August 2008 referring to additional restrictions on trade union activities and fines imposed by the ABCC in a “campaign against workers and unions in the construction industry”.

The Committee notes that, according to the Government, the ABCC will be retained until 31 January 2010, after which time, it will be replaced with a specialist building and construction division of the inspectorate of a new workplace relations agency, Fair Work Australia. The Government has engaged a former judge of the Australian Federal Court to consult and report on matters related to the creation of the specialist division and to report to the Government in 2009. A report will be provided to the Committee of Experts once the Government has had the opportunity to consider the recommendations of this inquiry.

The Committee requests the Government to provide a full reply to the information communicated by the ACTU and the ITUC in 2007 and 2008.

The Committee wishes to emphasize once again that all workers without distinction whatsoever, including workers in the building and construction industry, have the right to organise, and that the exercise of the right to organize presupposes that trade unions have the right to freely organize their activities and formulate their programmes for furthering and defending the interests of workers, without interference from the authorities. The Committee, therefore, once again urges the Government to indicate in its next report any measures taken or contemplated with a view to: (i) amending sections 36, 37 and 38 of the BCII Act, 2005, which refer to “unlawful industrial action” (implying not simply liability in tort vis-à-vis the employer, but a wider responsibility towards third parties and an outright prohibition of industrial action); (ii) amending sections 39, 40 and 48–50 of the BCII Act so as to eliminate any excessive impediments, penalties and sanctions against industrial action in the building and construction industry; (iii) introducing sufficient safeguards into the BCII Act so as to ensure that the functioning of the Australian Building and Construction (ABC) Commissioner and inspectors does not lead to interference in the internal affairs of trade unions – especially provisions on the possibility of lodging an appeal before the courts against the ABC Commissioner’s notices prior to the handing over of documents (sections 52, 53, 55, 56 and 59 of the BCII Act); and (iv) amending section 52(6) of the BCII Act which enables the ABC Commissioner to impose a penalty of six months’ imprisonment for failure to comply with a notice to produce documents or give information so as to ensure that penalties are proportional to the gravity of any offence. The Committee also requests the Government to indicate any measures taken to instruct the ABCC to refrain from imposing penalties or commencing legal proceedings under the ABCC while the review is under way.

The Committee addresses a request on certain other points directly to the Government.