Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

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

The Committee notes the comments of the Australian Council of Trade Unions (ACTU) and the International Trade Union Confederation (ITUC) contained in communications dated 30 August, and 22 and 26 November 2013.

Article 3 of the Convention. Right of organizations to freely organize their activities and to formulate their programmes. For a number of years, the Committee has been requesting the Government, in consultation with the social partners, to review: (i) sections 423, 424 and 426 of the Fair Work (FW) Act relating to suspension or termination of protected industrial action in specific circumstances; (ii) provisions of the Competition and Consumer Act prohibiting secondary boycotts; and (iii) sections 30J and 30K of the Crimes Act 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 Australian Government or the transport of goods or persons in international trade.

The Committee notes the Government’s indication that the FW Act has been reviewed, in consultation with the relevant stakeholders, by an independent panel. The panel concluded that the Act was broadly meeting its objectives and did not require wholesale change, and recommended 53 mainly technical amendments to improve the operation of the legislation. According to the Government, it has so far responded to 23 of these recommendations.

The Committee notes that, while the ACTU recognizes that the practical impact of section 423 has to date been minimal as a result of the interpretation by the Fair Work Commission (FWC) of the term “significant economic harm”, it maintains that the existence of this provision is inconsistent with the Convention. With regard to section 424, the ACTU expresses its concern over the possibility for protected industrial action to be terminated on the basis that the action was or is causing “significant damage to the Australian economy or an important part of it”. Referring to the FWC’s decisions, the ACTU considers that it has now been demonstrated that section 424 can be used by large employers to have protected industrial action terminated rather than having to make concessions within the context of collective bargaining. As for section 426, the ACTU indicates that the FWC has adopted a high threshold as to what constitutes a “significant harm” to a third party.

While noting the detailed information on the application of the abovementioned provisions in practice, the Committee requests the Government to provide information on the follow-up to the technical amendments to the FW Act relevant to freedom of association suggested by the independent panel. It further requests the Government to continue its work on reviewing, in consultation with the social partners, the FW Act, the Competition and Consumer Act, and the Crimes Act, including ongoing interpretations of those Acts by the FWC and the courts.

With regard to access to the workplace, the Committee notes with interest the Government’s indication that the FW Amendment Act, 2013, which will enter into force on 1 January 2014, introduced a number of amendments to the right of entry, which will affect the practical application of the FW Act, and that prior to this amendment, the review panel found that in almost all cases, entry to workplaces by permit holders involved no disruption to business operations. The Committee also notes that the ACTU welcomes this amendment.

The Committee recalls that it has previously requested the Government to amend the Building and Construction Industry Improvement Act 2005. The Committee notes with interest that the Fair Work (Building Industry) Act entered into force in 2012 and that the Fair Work Building Industry Inspectorate commenced its operation (in lieu of the abolished Australian Building and Construction Commission) in June 2012. In this respect, the Committee notes that the ACTU states that these changes represent an improvement in the compliance with the Convention and that social partners, including ACTU representatives, are members of the new Inspectorate’s advisory board. The Committee notes that the ACTU nevertheless expresses its concerns in respect of the retention, in the new Act, of coercive powers for use in the investigation of industrial issues, albeit with some procedural safeguards and for a limited period of three years. The Committee requests the Government to provide its observations on the above concerns of the ACTU and information on the practical application of the new legislation.

The Committee further notes that, in their communications dated 22 and 26 November 2013, the ACTU and ITUC allege that the Building and Construction Industry (Improving Productivity) Bill 2013 introduced into Parliament will infringe, if adopted, upon freedom of association rights of workers in the industry. The Committee requests the Government to provide its observations thereon.

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