Rapport intérimaire - Rapport No. 143, 1974

1. 137. The complaints of the Australian Council of Trade Unions and the New South Wales Teachers' Federation were sent direct to the ILO on 27 June and 14 November 1973 respectively.
2. 138. These communications were transmitted to the Government, which forwarded its observations in two communications dated 21 November and 27 December 1973.
3. 139. Australia has ratified both 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. 140. The Australian Council of Trade Unions states that the Industrial Arbitration Act of New South Wales contravenes Conventions Nos. 87 and 98 in several important respects and that the right of the New South Wales Teachers' Federation freely to organise and bargain collectively is seriously affected. The complainant states that this situation has been brought about by the action of the New South Wales Public Service Board in seeking the deregistration of the Federation under the terms of that Act. The Board is an agency of the New South Wales Government and its action, according to the complainant, reflects deliberate government policy. The decision of the Government to proceed in this fashion has been related only superficially to industrial issues. In fact, the complainant alleges, it constitutes a form of retaliation against the Federation's legitimate attempt to draw public attention to serious inadequacies in the state education system.
2. 141. The New South Wales Teachers' Federation states in its complaint that since the end of 1968 there has been a series of disagreements between the authorities (the Government of New South Wales, the Department of Education and the New South Wales Public Service Board) and the Federation, many of which resulted in direct action (including strikes) on the part of the Federation after the breakdown of negotiations.
3. 142. The main matters of disagreement between the Federation and the Board centre on the refusal of the members of the Federation to do "extras" i.e. to teach the lessons of absent colleagues, and protests because of staff shortages resulting in too large classes and heavier teaching loads. On neither of these issues, the Federation alleges, is recourse to arbitration possible.
4. 143. The Federation states that the central point of its complaint is the fact that the Industrial Arbitration Act of New South Wales denies to teachers the right to arbitration on issues affecting working conditions other than salaries. Therefore on matters of working conditions, apart from voluntary negotiations, the Federation is without recourse since strikes by teachers are illegal under section 99 of the Act.
5. 144. The complainant federation points to the Recommendation concerning the Status of Teachers, 1966, which provides at paragraph 84:
   • "Appropriate joint machinery should be set up to deal with the settlement of disputes between the teachers and their employers arising out of terms and conditions of employment. If the means and procedures established for these purposes should b exhausted or if there should be a breakdown in negotiations between the parties, teachers' organisations should have the right to take such other steps as are normally open to other organisations in the defence of their legitimate interests.
   • The complainants state that "appropriate joint machinery" exists in the form of the Industrial Commission, on the question of salaries. On this issue there has never been a strike in the history of the Federation. No such machinery exists, however, for other conditions of work and thus, under the terms of the UNESCO/ILO Recommendation the Federation feels that it may legitimately defend its interests by strike or other direct action. The complainants quote in this connection the principle stated by the Committee, to the effect that "the right to strike is one of the essential means through which workers and their organisations may promote and defend their occupational interest".
6. 145. The Federation alleges that in 1952 it was granted by: the then Government of New South Wales the right to have its dues deducted from the salaries of its members in fortnightly instalments. At a Special Conference of the Federation on 22 April 1972 it was decided that the dues would be increased by about one third with a portion of the increase set aside for a "Fighting Fund". The Federation explains that this fund is not necessarily a strike fund (a previous "Fighting Fund" was used solely for financing advertising, for example). On 11 May 1972 the Government of New South Wales announced that it would no longer permit the check-off system to operate and even though the Federation subsequently withdrew the "Fighting Fund" proposal the Government refused to allow further check-offs, thus breaking, according to the Federation, a twenty-year contract with it.
7. 146. According to the Federation, in December 1972, because of the policy of direct action of the Federation, the New South Wales Public Service Board decided to apply to the Industrial Commission of the State in order to have the Federation's registration cancelled. Under section 8(8) of the Industrial Arbitration Act the Commission may cancel the registration of any industrial union for any reasons which appear to it to be good.
8. 147. The Federation indicates that the proceedings in this matter were considerably drawn out. The Commission initially favoured cancellation of the Federation's registration but with the agreement of the Public Service Board decided to suspend the proceedings in the light of a less militant policy on the part of the Federation's executive. After this situation continued for half a year the Commission decided that it was not in the interests of good labour relations to keep deregistration proceedings in suspense any longer and terminated the case in favour of the Federation, with the proviso, however, that should the Public Service Board wish to press its case at any later time it would be entirely free to do so. The Federation stresses that there is still a threat of deregistration, therefore, if it engages at any future time in direct action in support of their claims.
9. 148. In its communication dated 21 November 1973, the Government forwards the comments of the New South Wales Minister of Labour. The latter states that in his opinion the deregistration proceedings are entirely outside the scope of Conventions Nos. 87 and 98, except for Article 4 of the former Convention concerning dissolution. Article 4 is also complied with, the Minister states, since the proceedings are carried out by a judicial body (the Industrial Commission) and not an administrative authority.
10. 149. The Minister further states that when a union is registered it undertakes certain obligations not to engage in industrial wrongdoing. The Federation has ignored these obligations and it is natural that the Public Service Board commence deregistration proceedings, which are open to any employer, public or private.
11. 150. The Government of Australia also provides the transcript of the proceedings of the Industrial Commission of New South Wales in this matter. In its judgement dated 23 May 1973 the commission states:
    • "Direct action is the mainspring of the policies evinced by these (Federation) resolutions of 1971 and April 1972. Direct action is a phrase which the resolutions adopt. The direct action envisaged includes stopping work in concert, and also refusals by teachers, in furtherance of Federation policy, to perform duties or carry out instructions which conflict with that policy. Such actions taken in concert are strikes. The direct action envisaged by the resolutions therefore include action which the Industrial Arbitration Act makes illegal and which is also contrary to the Federation's own rules. It must be obvious that, if such direct action remains the mainspring of the Federation's policies, the duty of the Commission constituted by that Act to give effect to its purposes is to cancel the Federation's registration. This is not a case of occasional deviations into strikes but a calculated determination to achieve major objectives on working conditions by strikes when an impasse has been reached in negotiations."

B. B. The Committee's conclusions

1. 151. The Committee notes that the proceedings for cancellation of the registration of the New South Wales Teachers' Federation have been terminated but that they may be reopened if the Federation engaged in further direct action.
2. 152. The Committee notes also the terms of Paragraph 84 of the Recommendation concerning the Status of Teachers, 1966, quoted above in paragraph 144. This Recommendation was formulated in a wide context by an intergovernmental meeting convened by UNESCO with the participation of the ILO. It feels bound to point out, however, that in its own decisions it must consider primarily the language and spirit of ILO Conventions and particularly Conventions Nos. 87 and 98, as well as its own previous decisions. In this connection it should be remembered that in the preliminary work which led to the adoption of Convention No. 87 it was stated that "It has been considered that it would be inequitable to draw any distinction, as regards freedom of association, between wage earners in private industry and officials in the public services, since persons in either category should be permitted to defend their interests by becoming organised However, the recognition of the right of association of public servants in no way prejudges the question of the right of such officials to strike, which is something quite oil apart from the question under consideration.
3. 153. The Committee has taken the view that allegations relating to the right to strike are not outside its competence in so far as they concern the exercise of trade union rights. As regards workers in the public service it has always stated that where strikes are prohibited or subject to restrictions, it has emphasised the importance which it attaches to ensuring adequate guarantees to safeguard to the full the interests of the workers thus deprived of an essential means of defending their occupational interests, and has pointed out that the restriction should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage.
4. 154. The Committee notes that in New South Wales, according to the complaint, arbitration machinery exists only for salary issues and not for working conditions. If this were the case the complainant teachers would be left without recourse since they are prohibited from striking on the one hand, yet cannot submit their claims on working conditions to binding arbitration machinery on the other. The Government has not sent its allegations on this issue.