Definitive Report - Report No 149, November 1975

1. 44. This case was first examined by the Committee at its session in February-March 1974 when it submitted to the Governing Body an interim report which is contained in paragraphs 137-156 of the Committee's 143rd Report.
2. 45. The Committee, noting that, according to the complaint, in New South Wales arbitration machinery existed only for salary issues and not for working conditions and that teachers, who were prohibited from having recourse to strike action, could not submit their claims on working conditions to binding arbitration machinery, recommended to the Governing Body to request the Government to send information concerning the nature of means and procedures for arbitration on working conditions available to the teachers in New South Wales. The Committee also recommended the Governing Body to suggest that the competent authorities reconsider the question of reintroducing the check-off system of trade union dues for members of the Federation since the Committee was of the opinion that, in view of the fact that this system had prevailed for many years, its reintroduction might contribute to more harmonious industrial relations.
3. 46. The Government, in a communication dated 22 May 1974, transmitted the comments of the Government of New South Wales on these matters.
4. 47. Australia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 48. With regard to the nature of the means and procedures for arbitration on working conditions available to teachers in New South Wales the Government states in its communication that an inquiry, pursuant to section 35 of the Industrial Arbitration Act, has been introduced by the New South Wales Government concerning appropriate amendments to be made to the Industrial Arbitration Act to extend the jurisdiction of the industrial tribunals to areas not covered at present. The matters so referred for inquiry are drawn up in the following terms:
   • "Pursuant to all the powers me thereunto enabling, I, the Honourable Frederick Maclean Hewitt, Minister for Labour and Industry, do hereby refer to the Industrial Commission of New South Wales for its consideration and report pursuant to section 35(1)(o) of the Industrial Arbitration Act, 1940, as amended, the following matters, namely:
2. (1) whether, having regard to the interest of persons employed under the Public Service Act, 1902, as amended, the Police Regulation Act, 1899, as amended, and the Teaching Service Act, 1970, as amended, it is desirable in the public interest that the Industrial Arbitration Act, 1940, as amended, be further amended so as to extend the powers of a conciliation Committee (and consequentially by force of section 30 of the said Industrial Arbitration Act, 1940, as amended, the powers of the Industrial Commission of New South Wales) to make an award affecting such persons or any of them by authorising such an award to be made for the purposes set out in paragraphs (b) and (e) of sub-section (1) of section 20 of the said Act, and, if so,
3. (2) whether it is desirable in the public interest that the Industrial Arbitration Act, 1940, as amended, should also be amended so as to impose restrictions, and, if so, what restrictions, upon the exercise of such extended powers or so as to specify any conditions and, if so, what conditions, on which such powers may be exercised, and
4. (3) whether, if the Industrial Arbitration Act, 1940, as amended, was amended to extend the powers of a conciliation Committee in the manner specified in paragraph (1) hereof, any consequential amendments should be made to any of the said Acts or any other Acts.
   • Minister for Labour and Industry."
5. 49. The Government adds that the Industrial Commission of New South Wales, which is the highest industrial tribunal in the state of New South Wales, has commenced the inquiry and all interested parties have been invited to participate. It is expected, states the Government, that the inquiry will be pursued with the utmost expedition.
6. 50. The Government points out that persons employed under the Public Service Act, 1902, as amended, and the Teaching Service Act, 1970, as amended, are specified in the terms of reference as persons to whom additional access to the industrial tribunals might be made available if the Industrial Commission considers it appropriate that such additional access should be made.
7. 51. The inquiry, continues the Government, was instituted as a direct result of a promise made in the policy speech by the Premier prior to the last state elections, in which he stated that there had been strong representations for access to the Industrial Commission on any matter affecting the working conditions of public servants and teachers. In this speech the Premier went on to say the following:
   • "In view of the critical importance to any Government of some of the matters which are sought to be given to the Industrial Commission, the issue is now too complex to be dealt with by a simple amendment of the Industrial Arbitration Act.
   • "The Government proposes, therefore, that the Industrial Commission be asked to hold a public inquiry as to the extent to which access should be granted to the Industrial Commission in those areas from which public servants and teachers are now excluded.
   • "This will give the public, employers and unions concerned the opportunity to raise the important matters of principle that are involved and will enable the Industrial Commission to recommend to the Government the extent of the jurisdiction it considers the Commission should properly exercise."
8. 52. The Government indicates that "It has been held by the Industrial Commission in Court session that in respect to matters at present outside the jurisdiction of the Commission to determine, e.g. class sizes, such matters may be the subject of a compulsory conference under section 25 of the Industrial Arbitration Act, 1940, as amended, to encourage conciliation between the parties'. (Public Service Board v. Teachers' Federation, 1969, A.R. page 26.) Several such conferences have been held between the Public Service Board and the Teachers' Federation of New South Wales by the Industrial Commission and in every case where recommendations have been made for the settlement of a dispute the Public Service Board has carried out the terms of the Commission's recommendations."
9. 53. With regard to the check-off system of union dues, the Government explains that this practice is not normal throughout industry in New South Wales. Unions are voluntary organisations, continues the Government, and as such are entitled to make rules governing their relations with their members in accordance with democratic processes. "The payment of fees authorised by the rules is enforceable at law. There is, however, no obligation upon the employers to deduct fees from moneys due to members of unions. It is considered that freedom of association is safeguarded if employers are not involved in any financial arrangements with unions. Where the funds of a union are in any way assisted by employers, doubts could easily arise as to the bona fides of the union concerned. If a union is not a bona fide union grounds exist for the cancellation of its registration. In their relations with the Teachers' Federation of New South Wales, the employing authorities, in refusing to deduct dues from moneys payable to employees, are acting in accordance with normal practice."

B. B. The Committee's conclusions

1. 54. The Committee notes that a public inquiry is being held concerning inter alia the desirability of extending the powers of a conciliation Committee (and consequently the powers of the Industrial Commission of New South Wales) to make an award affecting certain categories of public servants, including teachers, by authorising such an award to be made for the purposes set out in section 20, 1(b) and (e)1 of the Industrial Arbitration Act, 1940. In this connection, the Committee would again recall the importance it attaches to the principle which it has emphasised on a number of occasions in the past as regards the public service and essential services, namely that, where strikes are prohibited or subject to restrictions, adequate guarantees should be ensured to safeguard to the full the interests of the workers thus deprived of an essential means of defending their occupational interests. The Committee has pointed out that, in such cases, the restriction should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties can take part at every stage and in which the awards are binding in all cases on both parties; these awards, once they have been made, should be fully and promptly implemented.