Definitive Report - Report No 204, November 1980

1. 135. The Committee has already examined this case on two occasions, the most recent of which was in February 1980 when it presented interim conclusions in its 199th Report, paragraphs 227 to 259. The Government communicated its observations in a letter dated 5 May 1980.
2. 136. Australia has ratified both the Freedom of Association and Protection of the Right to Organise Convention, 1946 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 137. The questions outstanding from the Committee's previous examination of this case concern the government withdrawal of check off facilities and amendments to the Conciliation and Arbitration Act.
2. 138. As regards the Government's removal of the check-off facility, at its February 1980 meeting, the Committee noted that according to the complainants, this was done without notice and there were threats from the Minister for Industrial Relations that such action could be taken again in the future, and it stated that the withdrawal of this facility, which could lead to financial difficulties for trade union organisations, was not conducive to the development of harmonious industrial relations and should therefore be avoided.
3. 139. As regards the proposed amendments to the Conciliation and Arbitration Act the Committee notes that one of the complainants had alleged that the Act permits the Government to take away the right of a union to exist by allowing its registration to be cancelled in the event that as few as two members take 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. 143A). The complainant supplied a copy of the Background Paper prepared by the Australian Council of Trade Unions on the Amendment bill which criticises, along with the above amendment, the following new provisions requirement of consultation by conciliation and arbitration commissioners before making or varying an award or certifying an agreement (section 22A); restriction of the jurisdiction of the Commission with regard to claims for "strike pay" (section 25A); requirement of expeditious hearings of stand-down applications (section 33A); necessary reference of certain matters to a Full Bench of the Commission (section 34); right of the President of the Commission to withdraw a matter fom an individual member of the Commission at any stage if he finds that there exist "special reasons" which justify withdrawal (section 34A). The above-mentioned Paper states that these amendments will undermine the role of the Conciliation and Arbitration Commission and will promote sanctions rather than negotiation to settle industrial disputes.
4. 140. The Governing Body, on the recommendation of the Committee:
   • - as regards the removal of the check-off facility, drew the attention of the Government to the considerations set out above; and
   • - requested it to communicate its observations on the allegations relating to proposed amendments to the Conciliation and Arbitration Act as soon as possible.

B. The Government's reply

1. 141. In its letter of S May 1980, the Government points out that it introduced the Conciliation and Arbitration Amendment Act, 1979, it the light of serious industrial disruptions affecting vital community services. It states that the amendments, which are now in force, do not result it automatic deregistration of a trade union, for under section 143A, tads would come about only after an application made by the Minister was considered by a Full Bench of the Conciliation and Arbitration Commission, before which the organisation would be able to state its case, and which must be convinced and declare that action by the organisation or its members would have a "substantial" adverse effect on the community. Even where a declaration is made, the new section of the Act provides the Governor-General with a discretion when signing the orders giving effect to such a declaration, and allows the affected organisation to make representations to the Government with the aim of ensuring that orders would not be made by him. The above-mentioned discretion permits the Governor-General to make orders alternative to a direction to the industrial Registrar to cancel a registration. The Government points out that such alternative orders may also be made under the existing provision for cancellation of registration in, the Conciliation and Arbitration Act. Moreover, the Government states that it adheres to the view that the power to suspend any of the rights, privileges and capacities of the members of the organisation permits a flexibility in the use of the deregistration provision. The power permits sanctions to be directed towards individuals specified in the declaration, so allowing the organisation itself to continue to function and to represent its members who are innocent of participation in the industrial action.
2. 142. The Government states that the new deregistration provisions do not undermine the role of the Commission for it is given the sole responsibility for hearing and determining applications for a declaration. Moreover, the Government points out that registration under the Australian Conciliation and Arbitration Act is undertaken voluntarily and it is for the organisation concerned to decide whether the benefits obtained justify acceptance of the obligations which arise on registration. As registration is not a prerequisite to the lawful establishment and operation of trade unions in Australia, deregistration does not dissolve an organisation: or take away its right to exist.
3. 143. As regards the withdrawal of the check-off facility, the Government explains that the system was introduced in April 1970 as - a contribution to good employer/employee relationships because of the attendant reduction in costs incurred by unions in the collection of dues. After a period of warning, in August 1.979 the facility was withdrawn in respect of all Public Service Act employee members of the ACOA and the Australian Public Service Association (Forth Division Officers) against a background of continuing industrial action by those organisations, carried on despite a Public Service Arbitrator's direction to cease such action. The facility has not been withdrawn from the ATEA. The Government confirms the Minister's notification to peak union councils that check-off facilities would be withdrawn in the case of future strikes or disruptive tactics, and that withdrawal would not necessarily be limited to Public Service Act staff and might be withdrawn from the whole membership or a particular section. The Government considers that the tendency, which has become apparent in recent times, for unions with membership in government employment, to engage in industrial action almost as a matter of course when machinery exists to enable disputes to be resolved by conciliation or arbitration by independent tribunals, is a situation which is not conducive to harmonious industrial relations and cannot be accepted.

C. The Committee's conclusions

1. 144. The Committee notes that the Government has supplied information on the amendments to the Conciliation and Arbitration Act, and has explained the reasons for the withdrawal of the check off facility from a limited number of public service employees.
2. 145. As regards the complainant's allegation that a union's right to exist was taken away by the deregistration procedure set out in the amendment Act, the Committee notes that, according to the Government, registration under the Australian system is voluntary and is not a prerequisite for the lawful establishment and operation of trade unions. Therefore, even if a union's registration under the Act is cancelled, it still exists and continues to function. Keeping in mind the importance of Article 4 of Convention No. 87, which provides that workers' organisations shall not be liable to be dissolved or suspended by administrative authority, the Committee particularly notes the Government's explanation of the deregistration procedure - application to the Commission, a body whose members have judicial backgrounds and whose business is conducted within the Australian court system; consideration by the Full Bench with all parties having every opportunity to state their case, the onus lying on the Minister to prove that action by the organisation or its members has or is likely to have a "substantial" adverse effect on the safety, health or welfare of the community; the opportunity of making representations to the Government with the aim of ensuring that orders were not made by the Governor-General. Moreover, as regards the complainant's assertion that amendments regarding the requirement of consultation between Conciliation and Arbitration commissioners before making or varying an award, of expeditious hearings of stand-down applications, restriction of the jurisdiction of the Commission concerning claims for "strike pay" and the new role of the Full Bench and President of the Commission undermine the role of the Commission, the Committee notes the Government's denial and statement that, as pointed out above, the registration system is voluntary and, once entered into, both rights to benefit from and duties to observe the system accrue to the union. The Committee considers that the legislation provides for judicial supervision (through the Commission) of the deregistration procedure and that the complainant has not proved that a violation of the principles of freedom of association has taken place it therefore considers that this aspect of the case does not call for further examination.
3. 146. As regards the removal of the check-off facility, the Committee notes the Government's statement that it was only withdrawn after a period of warning, that it does not apply to all organisations of Commonwealth employees and that the system was an administrative arrangement rather than a contractual agreement between the employer and the employee organisations. The Committee recalls that in the past in certain cases where the deduction of union contributions and other forms of union protection were instituted, not in virtue of the legislation in force but as a result of collective contracts or established practice existing between both parties, it has declined to examine the allegations made, basing its reasoning on the statement of the Committee on Industrial Relations appointed by the International Labour Conference in 1949, according to which Convention No. 87 can in no way be interpreted as authorising or prohibiting union- security arrangements, such questions being matters for regulation in accordance with national practice, Nevertheless, it also recalls that in its previous examination of this case it pointed out that withdrawal of the check-off facility, which could lead to financial difficulties for trade union organisations, was not conducive to the development of harmonious industrial relations and should therefore be avoided.