Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

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

The Committee takes note of the observations made by the International Trade Union Confederation (ITUC) received on 9 September 2019 in relation to the application of the Convention in law and in practice. It requests the Government to provide its comments thereon.

Articles 2, 3 and 5 of the Convention. Right of workers to form and join organizations of their own choosing without previous authorization and of these organizations to elect their officers, freely organize their activities and formulate their programmes without undue interference. The Committee notes that the ITUC expresses its deep and serious concern regarding the ongoing attempt by the Government to pass the Fair Work (Registered Organisations) Amendment (Ensuring Integrity) Bill 2019 into law. The ITUC considers these attempts as reckless and harmful to industrial relations and the protection of workers’ rights and liberal democratic values in Australia. The ITUC contends that the Bill will violate Australia’s international labour standards and human rights obligations, undermining, in particular, the right to freedom of association and effective recognition of collective bargaining and the right to freedom of expression for organised labour. According to the ITUC, the “Ensuring Integrity Bill” has introduced unprecedented measures for trade union governance and administration that threaten the effective functioning and very existence of unions in Australia without meaningful consultations with the unions. The Bill conflates the right to form or join unions to protect the social and economic interests of workers with the duties of officers of a corporation, leading to further conflation of the punishment arising from criminal conduct with breaches of civil duties and obligations arising from running a membership-based organization in the nature of a trade union. The measures introduced will seriously undermine the agency of workers’ organizations, permit gross interference by public authorities and hostile persons, create uncertainty and instability in the administration and operation of the organizations and result in undermining the peace and stability required for a productive industrial relations landscape in Australia. The Committee considers that this communication received after the deadline in a reporting year falls within the exceptional cases for its consideration as it refers to legislative proposals where the Committee’s comments may be of assistance in the country’s further consideration of this proposed legislation (CEACR 2019 General Report, paragraph 95).

The ITUC enumerates four broad measures it considers to be contrary to the Convention: disqualification from office; cancellation of registration; administration of dysfunctional organisations; and a public interest test for amalgamations. As regards the first point, the ITUC refers to the proposed power for the State officials to seek to deny trade union officers their right to stand for office because they have committed civil offences, some of which may be unrelated to the capacity to properly perform trade union duties, or for having been held in contempt of court. According to the ITUC, this measure has the potential to destabilize trade union functionality with frivolous but debilitating court actions and thereby denying the union its autonomy and its members their primary responsibility to protect their own interest. The ITUC indicates that the Bill also proposes to grant power to apply to the Federal Court to cancel trade union registration on grounds such as: officers having acted in a conflict- of-interest situation; and officers managing the affairs of the organization in an oppressive, unfairly prejudicial or discriminatory manner against members, or acting contrary to the interest of the organization, or having a record of not complying with designated laws (with no limitation as to scope or reach or time covered by this compliance record). Also included in the grounds for requesting cancellation of registration is the organization of unprotected industrial action. The ITUC is deeply concerned that these measures impute individual responsibility and actions of officers and officials to the existence of the organization itself and mete out collective punishment by the cancellation or deregistration of the trade union organization and create a high risk of legal uncertainty. Similarly, the Bill grants powers to apply to the Federal Court for a declaration that the organisation is not functioning effectively, for which a number of measures including placing it under administration may be applied. The ITUC considers these measures to be intrusive and to pose a serious risk of interfering with, or imposing a chilling effect on, the free functioning of trade unions. The autonomy and independence of the union would be undermined to the extent that matters and concerns that would ordinarily be addressed through the normal democratic and accountable functioning of the membership would instead elicit a public takeover possibly instigated by hostile interests. Finally, the ITUC refers to the proposed public interest test for the amalgamation of unions. The Fair Work Commission (FWC) has to decide that an amalgamation is in the public interest before it can take effect. Those who can make submissions in this regard include the Commissioner, the Minister, any other organisation that represents industrial interests of employers or employees or may otherwise be affected by the amalgamation, other organisations not representing interests of employers or employees in the industry concerned, and any other person of a sufficient interest in the amalgamation. The grounds for establishing public interest include record of compliance with law, the impact on employees and employers in the industry concerned and other matters which may be considered by the FWC. According to the ITUC, this represents an intrusive interference in trade union affairs and amounts to previous authorisation for trade union registration.

The Committee observes with concern the numerous proposals raised in the Bill which would broaden the possibilities of intervention in the internal functioning of workers’ organizations. It recalls that it has always considered that the conviction for an act the nature of which is not such as to call into question the integrity of the person concerned and not such as to be prejudicial to the performance of trade union duties should not constitute grounds for disqualification from trade union office (see the 2012 General Survey on the fundamental Conventions, paragraph 106). Moreover, cancellation of trade union registration is an extreme measure affecting the entire trade union membership. Where there are individual acts that need to be sanctioned, measures taken should rather focus on those responsible and avoid undermining the rights and benefits of collective representation. Finally, the Committee recalls that the right of workers to establish organizations of their own choosing without previous authorization, enshrined in the Convention, includes the amalgamation of unions. In light of the seriousness of the matters raised, the Committee calls upon the Government to review the proposals in the Bill with the representative workers’ and employers’ organizations concerned so as to ensure that any measures adopted are in full conformity with the Convention. It requests the Government to keep it informed of the steps taken in this regard and any further developments.

Article 3. Right of organizations to freely organize their activities and to formulate their programmes. In its previous comments, the Committee requested the Government to take all appropriate measures, in consultation with the social partners, to review: (i) the provisions of the Competition and Consumer Act prohibiting secondary boycotts; (ii) sections 423, 424 and 426 of the Fair Work Act (FWA) relating to suspension or termination of protected industrial action in specific circumstances; (iii) sections 30J and 30K of the Crimes Act prohibiting industrial action threatening trade or commerce with other countries or among states; and (iv) boycotts resulting in the obstruction or hindrance of the performance of services by the Government or the transport of goods or persons in international trade; and to provide detailed information on the application of these provisions in practice with a view to bringing them into full conformity with the Convention.

The Committee notes the Government’s indication that it considers the current provisions dealing with industrial action to be necessary, reasonable and proportionate to support the objects of the FWA, which is to provide a balanced framework for cooperative and productive industrial relations that promotes national economic prosperity and social inclusion for all Australians. While protected industrial action is legitimate during bargaining for a proposed enterprise agreement, there may be cases where the impact of that action on the parties or on third parties is so severe that it is in the public interest, or even potentially the interests of those engaging in the action, that the industrial action cease, at least temporarily. The Government adds that a variety of factors must be taken into account when considering an application under section 423 of the FWA and that such applications are rare, with two applications lodged in 2016–17 and one application lodged in 2017–18. As regards section 424, there have been relatively few applications with only nine in 2017–18, in contrast to 579 applications for a protected action ballot order during the same period. Finally, there were only two applications made under section 426 in 2017–18.

The Government indicates that no decisions were made under sections 423 and 426, while it provides some examples of decisions taken by the FWC under section 424 either to suspend or terminate protected industrial action or to refuse to issue such an order. Cases concerning the termination or suspension of industrial action included: (a) terminated action in an oil refinery that would cause significant damage to the Western Australian economy estimated at nearly AUD90 million per day as well as to the Australian economy as a whole; (b) suspension for two months of industrial action by employees of court security and custodial services where the action threatened to endanger the personal safety, health and welfare of part of the population; (c) the suspension in the form of an indefinite ban on a work stoppage in railway transport which threatened to endanger the welfare of a part of the population and threated to cause significant damage to the Sydney economy; and (d) termination of industrial action affecting the Australian Border Force. An application requesting termination of industrial action in independent schools was however refused noting that, while the action was causing “inconvenience”, it was “not as yet causing significant harm”.

The Committee appreciates the information transmitted by the Government concerning the practical application of these provisions in the FWA. The Committee notes that some of the services concerned in the cases where industrial action was either suspended or terminated (such as border control, court security and custodial services) may be understood to be essential services in the strict sense of the term or public servants exercising activity in the name of the State where strike action may be restricted. The Committee recalls however that it does not consider oil refinery or railway transport to constitute services in which this right may be fully restricted, although the Government may consider the establishment of negotiated minimum services.

Observing finally that there have been no changes to the provisions of the Competition and Consumer Act prohibiting secondary boycotts or to sections 30J and 30K of the Crimes Act, the Committee once again requests the Government, in light of its comments above and in consultation with the social partners, to review the above-mentioned provisions so as to ensure that they are not applied in a manner contrary to the right of workers’ organizations to organize their activities and carry out their programmes in full freedom. It further requests the Government to continue providing detailed information on the application of these provisions in practice.

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

[The Government is asked to reply in full to the present comments in 2020.]