Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

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

Previous comment

Article 3 of the Convention. Right of organizations to freely organize their activities and to formulate their programmes. Protected action ballots. In its previous comment, the Committee requested the Government once again to review section 437(2A) of the Fair Work Act, 2009 (FWA). The Committee recalls that, in the context of an application for a protected action ballot order to determine whether employees wish to engage in an industrial action for a proposed enterprise agreement, this provision restricts the right to take industrial action until after the commencement of bargaining. The Committee notes the Government’s indication that it is not currently considering any review or reforms of section 437(2A) of the FWA. The Committee requests the Government to continue to provide updates on the application in practice of section 437(2A) of the FWA and to engage with the social partners with a view to reviewing this provision to ensure that workers’ organizations are able to exercise their activities and carry out their programmes in full freedom.

Fair Work (Registered Organisations) Amendment Bill. In its previous comment, the Committee requested the Government to continue to provide information on the activities of the Registered Organisations Commission (ROC) established by the Fair Work (Registered Organisations) Amendment Act, 2016 to regulate registered organizations with enhanced investigation and information-gathering powers. The Government indicates that the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act, 2022 amended both the FWA and the Fair Work (Registered Organisations) Act, 2009 (RO Act). The main amendments include the abolition of the ROC and the transfer of its regulatory functions relating to registered organizations to the General Manager of the Fair Work Commission (FWC). The Government further indicates that: (i) the functions of the General Manager are now independent (no longer under specific direction of the President of the FWC); (ii) the General Manager may make inquiries and conduct investigations regarding organizations’ compliance with the RO Act and their rules on finances and financial administration; (iii) the process includes providing a notice of proposed adverse findings, an opportunity to respond, payment of fines in case of contravention, as well as access to court; and (iv) some of the investigations undertaken relate to improper record keeping, non-compliance with the requirement to keep and report a register of members and unauthorized expenditure of funds for personal purposes in breach of official duties. The Committee understands from the above that the aim of these procedures is to prevent and investigate serious misconduct of trade union and employers’ organizations officials in relation to financing. The Committee trusts that the independent nature of the proceedings, as reported by the Government, will contribute to good governance and compliance with the law by registered organizations while at the same time avoid any undue interference by the State in the internal affairs of workers’ and employers’ organizations. The Committee requests the Government to provide information on the activities of the General Manager of the FWC in this respect, investigations undertaken and any penalties or fines issued.

Building industry. In its previous comment, the Committee requested the Government to review the application of section 47 of the Building and Construction Industry (Improving Productivity) (BCIIP) Act, which contains restrictions on picketing. The Committee notes the Government’s indication that the Secure Jobs, Better Pay Act abolished parts of the BCIIP Act, including section 47 (the amended law was renamed as the Federal Safety Commissioner Act, 2022). While no new proceedings in relation to potential contraventions of section 47 can be initiated, there are a number of ongoing procedures (there have been 49 cases dealing with unlawful picketing since the Government’s previous report). The Committee also observes the establishment of the National Construction Industry Forum as a statutory advisory body to the Government on workplace issues, including workplace relations and skills and training, in the building and construction industry. The Committee notes with satisfaction the abolition of section 47 of the BCIIP Act. The Committee trusts that the remaining pending cases in relation to allegations of unlawful picketing will be rapidly resolved, in accordance with the considerations that restrictions on picketing should be limited to cases where the action ceases to be peaceful and that penalties in respect of illegitimate actions linked to strikes should be proportionate to the offence or fault committed.

In its previous comment, the Committee requested the Government, in relation to the functioning of the Australian Building and Construction Commission (ABCC) and its examination powers, to continue to provide information on any measures taken or envisaged to further safeguard the rights of workers’ organizations in exercising their legitimate activities and to ensure that any penalties inflicted for failure to provide information requested are proportional to the gravity of the offence. The Committee notes the Government’s indication that the Secure Jobs, Better Pay Act abolished the ABCC, including the examination powers previously provided in sections 61 (Issue of Examination Notice) and 62 (Offence for failing to comply with an examination notice) of the BCIIP Act. As a result, the Fair Work Ombudsman is now the single regulator for compliance and enforcement of the FWA. The Committee notes with satisfaction the repeal of the ABCC examination powers. The Committee trusts that safeguards were put in place to ensure that the work of the Fair Work Ombudsman is conducted in a manner consistent with the Convention, so as to avoid any undue interference in the internal affairs of trade unions. The Committee requests the Government to provide information on the application in practice of these arrangements.

The Committee further requested the Government to provide information on any measures taken to review the application of the BCIIP Act provisions concerning unlawful industrial action. The Committee notes with satisfaction the reported abolition of section 46 of the BCIIP, which prohibited unlawful industrial action defined in broad terms. It also notes the Government’s indication that since its previous report, there have been 15 cases dealing with unlawful industrial action, two of which are pending. The Committee trusts that these cases will be rapidly solved and requests the Government to indicate whether any other provisions regulate unlawful industrial action in the building sector.

State jurisdictions. New South Wales (NSW). In its previous comment, the Committee requested the Government to provide information on cases where section 226(c) of the Industrial Relations Act, 1996 (IRA) was used to cancel the registration of an organization when its members engaged in industrial action having a major and substantially adverse effect on the provision of any public service. The Committee notes the Government’s indication that no action has been taken to cancel the registration of any registered organization pursuant to section 226(c) of the IRA. Taking note of this indication, the Committee requests the Government to continue to provide information in this respect and to consider amending this provision.

Queensland. The Committee requested the Government to continue to provide information on any instances where the Queensland Industrial Relations Commission (QIRC) may have suspended or terminated industrial action under section 241of the Industrial Relations Act, 2016 (Queensland) (IRA). The Committee recalls that this provision allows for suspension or termination of an industrial action where it threatens to endanger the life, personal safety, health or welfare of the population or threatens to cause significant damage to the State’s economy or an important part of it. The Committee notes the Government’s indication that since 2020, two applications were made under section 241, neither of which led to a decision by the QIRC (in one case the parties did not pursue the matter and in the other case the application was withdrawn). The Government further informs that one application was made under section 240(1) of the IRA (suspension or termination of industrial action which threatens to cause significant economic harm to an employer or employee who will be covered by the proposed bargaining instrument in relation to which the industrial action is ongoing or threatens to cause significant economic harm, where the harm is imminent) but the parties reached an agreement on the matter. Taking note of the above, the Committee requests the Government to continue to provide information on the practical application of these provisions, in particular any decisions taken by the QIRC in this regard. Further considering that terminating a strike where it threatens to cause significant damage to the economy may undermine the exercise of the right to strike, the Committee encourages the Government to review the relevant provisions, in consultation with the social partners.

The Committee further notes the Government’s indication in its report under the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) that the 2021 review of the IRA pointed to a lack of clarity as to which organizations could act in industrial matters due to some organizations purporting to be trade unions but not complying with any registration or reporting requirements of the Act. In response, the Industrial Relations and Other Legislation Amendment Act, 2022 was adopted, which includes amendments to the definition of registered organizations and introduces civil penalties for misrepresentations. The Committee observes in this respect that a new amendment concerning registration allows the Industrial Relations Commission to grant an application only if the applicant organization does not have an officer: (i) who is the subject of an order made under section 483D (prohibition to represent an entity); (ii) against whom a civil penalty order was made in the previous five years; and (iii) who was an officer of a cancelled incorporated association (section 607(1)(e)); and only if the applicant is free from control by, or improper influence from, a person who was an officer of a cancelled incorporated association (section 607(1)(f)). New section 483A(f) further stipulates that an entity is eligible for registration only if it has not been refused an application for registration within the previous five years. The Committee observes that some of these provisions refer to broad criteria which may raise concerns with regard to compatibility with the Convention and recalls, in particular, that conviction for an act the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the performance of trade union duties should not constitute grounds for disqualification from trade union office. While taking due note of the Government’s indication that the amendments were introduced to address concerns of entities misrepresenting themselves as trade unions, the Committee requests the Government to ensure that the amendments are applied in line with the Convention so as not to restrict the exercise, by legitimate trade union organizations, of the rights enshrined in the Convention. The Committee requests the Government to provide information on the practical application of these amendments.

The Committee further observes that section 878 of the IRA contains a list of grounds on which deregistration of an organization can be ordered. These include engagement in an industrial action which has, or is likely to have, a substantial adverse effect on the safety, health or welfare of the community or a part of the community (section 878(b)) and harsh or oppressive rules of the organization or their administration (section 878(d) and (e)). While noting that there are some safeguards in the procedure for deregistration (section 881), the Committee observes that the mentioned criteria are phrased in broad language that may lead to extensive interpretation, and recalls that dissolution of an organization constitutes an extreme form of interference in its activities. In line with these considerations, the Committee requests the Government to provide information on the application in practice of the above provisions, in particular, whether any organizations have been deregistered and if so on which specific grounds. The Committee also encourages the Government to engage in discussions with the social partners with a view to reviewing the grounds for deregistration provided for in section 878 of the IRA.

Western Australia. In its previous comment, the Committee recalled the need to amend provisions that stipulate that workers’ membership in a trade union ends if their subscriptions are not paid, so as to leave the issues of membership and subscriptions to the internal rules of the organizations concerned. Welcoming the Government’s indication that the State undertakes to review the relevant provisions of the Industrial Relations Act, 1979 (Western Australia), in consultation with the stakeholders, the Committee requests the Government to provide any updates on measures taken in this regard.