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

The Committee notes the information provided in the Government’s report, the decisions of various courts at State and Federal levels, and the comments of the Australian Chamber of Commerce and Industry (ACCI) and the International Transport Workers’ Federation (ITF).

Federal jurisdiction

1. The Workplace Relations Act, 1996. Registration requirements. The Committee had requested that the Government consider reviewing the registration requirements to ensure that workers without distinction whatsoever are entitled to form and join organizations of their own choosing, and to continue providing information on the practical application of the registration system. The Government indicates that the existing registration provisions are designed to ensure the independence and viability of organizations, and that the low level of registration of new unions does not indicate that the registration requirements are unreasonable. The Committee notes this information, including the examples of registration, cancellation and amalgamation.

Right to draw up constitutions and rules. The Committee previously requested the Government to refrain from any interference which would restrict the right of workers’ organizations freely to draw up their constitutions and rules by leaving the issue of disciplining of members to the rules of the organization and to amend sections 298R and 298U of the Act accordingly. Noting that the Government had stated that it would consider complying with its request, the Committee requests that the Government keep it informed of developments in this respect.

Organizing administration and activities to further and defend the interests of workers. The Committee takes note of the court decisions and comments provided by the Government on the scope of protected action, and on the relationship between section 166A (providing tort immunities in certain circumstances) and sections 170ML, 170MT and 170MU (providing protection for industrial action). It notes that some of these decisions have curtailed the ability of employers to bring civil proceedings in respect of industrial action.

2. Trade Practices Act, 1974. Secondary boycotts. The Committee notes the Government’s statement that it is not aware of any cases involving the application of section 45E of the Act, and requests that the Government continue to provide information in its next reports on any cases involving the application of this provision.

State jurisdictions

New South Wales. As regards section 226(c) of the Industrial Relations Act, 1996 (which provides that the registration of an organization may be cancelled where it or its members engage in industrial action having a major and substantially adverse effect on the provision of any public service), the Committee notes that no union has had its registration cancelled on such grounds, and that the only two applications for cancellation were made by the organizations in question in respect of their own registration. Recalling that prohibitions of the right to strike should be limited to essential services in the strict sense of the term and to public servants exercising authority in the name of the State, the Committee requests the Government to keep it informed of developments in this respect.

Western Australia. Article 2 of the Convention. The Committee notes the Government’s indications concerning the "good reason" criteria for registration of organizations with less than 200 members and the absence of such applications in view of the general trend in trade unions structure.

Article 3 of the Convention. Interference in trade union affairs. The Committee had expressed the view that some provisions of the Act (procedures and limitations for maintaining a political fund; workers’ membership to end if subscriptions are not paid; extensive definition of financial officer) constitute excessive interference in the internal affairs of the organizations. The Committee notes with interest that the definition of financial official has been circumscribed and that the provisions concerning political expenditures have been repealed. Noting that the Government currently has no plans to amend the provisions stipulating that workers’ memberships in a trade union end if their subscriptions are not paid, the Committee recalls that this matter should be left to the rules of the organizations, and requests the Government to keep it informed of developments in this respect in future reports.

Restrictions on strikes. The Committee previously commented on a number of provisions that, in its view, unduly limit the exercise of legitimate strike action. Noting with interest that the provisions of the Act dealing with back-to-work orders, common law liability and strike ballots have been repealed, the Committee requests the Government to keep it informed of the application of the Act in practice in future reports.