Informe definitivo - Informe núm. 230, Noviembre 1983

1. 44. The Administrative and Clerical Officers' Association, AGE (ACOA) sent a complaint of violation of trade union rights in Australia in a communication dated 4 February 1983. The Public Services International (PSI) presented its complaint on the same subject in a communication dated 11 February 1983. The Government sent its observations in communications of 11 May and 13 October 1983.
2. 45. 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) ; it has not ratified the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainants' allegations

1. 46. In its communication of 4 February 1983, the ACOA alleges that Conventions Nos. 87, 98 and 151 have been infringed by the enactment, on 23 December 1982, of the Salaries and Wages Pause Act which suspends for 12 months the powers of employing authorities and independent arbitral tribunals to determine the remuneration, working hours and allowances of Commonwealth public servants. According to the complainant, Article 11 of Convention No. 87 is infringed because an inherent element of the right to organise in the Australian context is the right of registered organisations of industrial employees to make and have determined claims affecting conditions of employment and this is suspended by sections 7 and 8 of the Salaries and Wages Pause Act.
2. 47. The complainant states that Articles 2 and 4 of Convention No. 98 are infringed because the Act constitutes government interference in the utilisation of machinery for voluntary negotiation between employers' and workers' organisations. According to the complainant, the effect of the Act is to contravene the spirit of a number of collective agreements which have been established formally or informally over a considerable period of time, e.g., understandings permitting the regular adjustment of reimbursable expenditure allowances by reference to price movements are set aside by the Act. In addition, states the complainant, the repudiation of such understandings occurred without any consultation.
3. 48. According to the complainant, Article 6 of Convention No. 98 is infringed as well because the Act covers employees not "engaged in the administration of the State", for example, persons engaged in catering, teaching, ship construction and maintenance. The ACOA refers in this connection to statements of the Committee of Experts on the Application of Conventions and Recommendations to the effect that exclusion under Article 6 from the guarantees of the Convention is limited to civil servants engaged in the administration of the State strictly so defined. The position in this connection of public servants engaged in the administration of the State - set out in Articles 7 and 8 of Convention No. 151 - is, according to the complainant, also violated by the Act.
4. 49. The ACOA states that the Government may seek to justify its action as exceptional, dictated by the needs of economic policy and the pursuit of greater employment. The ACOA, however, puts forward the following arguments against this position; the Act is discriminatory as regards both the category of persons covered (only Commonwealth employees) and the period of time in force (six months has been more generally specified by the state governments); the Act is not an overall employment and economic policy; no compensatory movement of rates or allowances frozen by the legislation is undertaken; the wage rates of Commonwealth employees were already lagging behind the rates paid for similar work in the private sector with the result that some rates and allowances will now be fixed for periods of 18 months to two years; the Government's resort to legislation of this kind is not exceptional in that it is a further step in a series of legislative and administrative restraints (see Case No. 9021 concerning the Commonwealth Employees (Employment Provisions) Act and withdrawal of check-off facilities). In relation to this latter point, the ACOA also refers to sections 32A and 32B of the Public Service Act (amendments adopted in 1980) as violating Conventions Nos. 98 and 151 because they confer on government authorities the power to suspend payment of salary where an employee refuses or fails to comply with a direction regarding his work.
5. 50. Lastly, the complainant cites an instance where the Government disallowed, by executive action through Parliament, an arbitral determination dealing with matters relating to retirement and redeployment of Commonwealth employees although the Government itself had exhorted the ACOA to take its dispute to arbitration. The ACOA supplies a copy of the Parliamentary discussion which led to the disallowance of the determination from which it appears that determinations are rarely overturned and that a Royal Commission on Australian Government Administration recommended the removal of the Government's power of disallowance of determinations. On a vote, however, the determination in question was disallowed which, in the complainant's opinion, further jeopardises the position of Commonwealth employees as regards retirement and redeployment policies. The complainant also cites a case decided by the Federal Court of Australia - Industrial Division in March 1982 which, in its opinion, denies to most Commonwealth employees access to protective sanctions against victimisation of unionists in the course of employment (Bolwell v. Australian Telecommunications Commission 42 ALR 235).
6. 51. In its communication of 11 February 1983, the PSI states that the Salaries and Wages Pause Act violates, in particular, Article 4 of Convention No. 98 and Articles 7 and 8 of Convention No. 151. It points out that the timing and nature of the imposition of the unilateral freeze on wages of public servants should be thoroughly investigated as it is directed at a specific group of the working community using means over which the Government has complete control, i.e., legislation affecting only government employees.

B. The Government's reply

1. 52. In its communication of 11 May 1983, the Government stated that the legislation in question had been enacted by a previous government and pointed out that the present Government, upon assuming office, convened a tripartite National Economic Summit Conference the result of which was agreement upon a mutual policy of restraint. The Government undertook to keep the Committee informed of the future of the current wages pause and the course of wage determination in both the public and private sectors, as well as on the outcome of proceedings - in which all parties were participating - over the coming months before the Conciliation and Arbitration Commission.
2. 53. In its communication of 13 October 1983, the Government announces the passage of the Salaries and Wages Pause Act Repeal Bill, 1983. From a copy of the repeal legislation supplied by the Government, it appears that the legislation impugned in this case is repealed as of 7 October 1983 but that certain transitional provisions were necessary for medical practitioners and pharmaceutical chemists whose remuneration was affected by the 1982 Act. According to the Government, on 23 September 1983 the Full Bench of the Conciliation and Arbitration Commission handed down its decision to award a 4.3 per cent increase in award wage rates and to provide for a return to a centralised system of wage fixation based on six monthly adjustments calculated on movements in the consumer price index.

C. The Committee's conclusions

1. 54. The Committee notes with interest that the Salaries and Wages Pause Act, 1982 - impugned by the complainants as infringing Conventions Nos. 87, 98 and 151 - has been repealed.
2. 55. The Committee would recall generally, as it has done in previous cases concerning wage restraint legislation, that such restrictions should be imposed as an exceptional measure and only to the extent necessary, without exceeding a reasonable period and should be accompanied by adequate safeguards to protect workers' living standards. Nevertheless, in the present case, in view of the fact that free and voluntary collective bargaining, including access to appropriate arbitral tribunals and awards, has been reinstated in the public Commonwealth employees sector, the Committee considers that this case does not call for further examination.