AUSTRALIAN COUNCIL
Of TRADE UNIONS
Submissions to the ILO’s Committee
Of Experts
Breaches of ILO Convention 87 & 98
By Australia & Western Australia
13 August 1998
AUSTRALIA
The Workplace Relations Act 1996
and Other Australian Laws
Australian Council of Trade Unions
Submission to the ILO’s Committee
Of Experts Concerning
Breaches of ILO Convention 87
on Freedom of Association
and Protection of the Right to Organise
ACTU Submission to ILO Committee of Experts
Workplace Relations Act 1996 (Cth) and other Australian laws:
Breaches of ILO Convention 87on Freedom of Association
and Protection of the Right to Organise
Introduction
This analysis is divided into two parts. The first part deals with the manner in which the Workplace Relations Act 1996 (Cth) (“the WR Act”) breaches what might be called the organisational rights of unions which are protected by Convention 87. The second and more important part examines the various provisions of the WR Act, and other Australian laws, which infringe the “right to strike”, a right which is considered an intrinsic corollary of the right to organise protected by the Convention (see, for example, 1994 Report of the ILO Committee of Experts on Freedom of Association and Collective Bargaining, page 66, paras 148 and 151).
A.Organisational Rights
1.The WR Act encourages and gives preference to the development of enterprise unions in breach of Article 2 of Convention 87.
1.1Sections 188 and 189(4) of the WR Act provide for the registration of “enterprise associations”, and set out less stringent requirements for their registration than apply to other associations (for example, the requirement that there be no other organisation to which members of the association might more conveniently belong does not apply to enterprise associations).
1.2This legislative emphasis on enterprise-based unions infringes the right of workers protected by Article 2, to “establish and … join organisations of their own choosing”, including organisations of workers from different workplaces or sites: 1996 Digest, para 283. This right also implies the effective possibility to create, if the workers so choose, more than one workers’ organisation per enterprise: 1996 Digest, para 280.
1.3The ILO has found that by according favourable or unfavourable treatment to a given organisation over others, a government may be able to influence the choice of workers as to which organisation to join, in breach of Convention 87: 1996 Digest, para 304. The same should be seen to apply where, by legislation, a particular type of organisation is given preference over another.
2.The WR Act further interferes with the right to choice of union protected by Article 2 of Convention 87.
2.1This is done primarily through provisions enabling orders to be made about union representation, including orders for exclusive coverage of particular workers, in the event of a demarcation dispute (section 118A).
2.2Section 118A limits workers’ choice of union in breach of Article 2 of Convention 87. It does so in the interests of employers; under section 118A(1B), orders for exclusive coverage may not be made unless there has been a demarcation dispute between unions which has harmed the business of the employer. Employers should have no involvement in the determination of the choice of union by workers, yet this is exactly what section 118A allows.
2.3This is illustrated by a decision of the Australian Industrial Relations Commission (“the AIRC”) relating to union representation rights of workers employed in the Victorian Workcover Authority[1]. In that case two unions, the Finance Sector Union and the Community and Public Sector Union (“CPSU”), reached an agreement (which was supported by the workforce) about joint coverage of the relevant workers, and made application under section 118A for orders giving effect to that agreement. However, the employer opposed the application because it did not want the CPSU to have any industrial representation rights over the relevant workers. This was one of the factors which led the AIRC to reject the CPSU’s application, with the result that the interests of the employer were given preference over those of the workers concerned in the determination of union representation rights[2].
2.4Section 118A has been used in the past, and may continue to be used, to achieve the exclusion of a union from a particular workplace or industry. That this can now be done at the behest of employers flies in the face of the rights protected by Article 2.
B.The Right to Strike
3.Introduction
3.1The ILO has long recognised the right to strike by workers and their organisations as a legitimate means of defending their economic and social interests, and in fact as one of the essential means through which they may promote and defend those interests: 1996 Digest, paras 474 and 475. The right to strike is one of the essential means through which workers and their organisations may promote and defend their economic and social interests (Digest 1985 para 363).
3.2The right to strike is not expressed in Convention 87, but implied from the right of unions to organise their activities and formulate their programs (including furthering and defending the interests of workers), which is preserved in Articles 3, 8 and 10 of the Convention
3.3The WR Act, and other relevant Australian laws, breach the right to strike inherent in Convention 87 by failing to provide all but a limited right to strike at law, and by imposing significant legal restrictions on the taking of strike action (some of which have already been found to fall foul of ILO principles: see paragraphs 5.4 and 5.5 below).
4.Failure to provide for the right to strike
4.1Under Australian law the taking of industrial action is considered a breach of the employment contracts of the workers concerned, and may also result in liability in tort on the part of those workers and their union.
4.2This prima facie position is partly relieved by the provisions of Part VIB, Division 8 of the WR Act, which allow the taking of “protected” industrial action in support of claims made during a “bargaining period” in the negotiation of a certified agreement (section 170ML)[3]. Such industrial action is then immune from common law proceedings that might otherwise be available in respect of it, and from certain other statutory consequences (section 170MT). However, there are significant limitations on the protection offered by these and associated provisions of the WR Act.
4.3First, because protected industrial action may only be taken during a bargaining period in negotiations for a certified agreement, the subject matter about which industrial action may be taken is necessarily limited in its scope to those matters which may be covered by a certified agreement. These are in turn limited by section 170LI(1) of the WR Act to matters pertaining to the relationship between employers and employees. There are many matters which Australian courts have, over time, found to be outside the scope of the relationship of employers and employees; for example, a claim for the deduction of union dues[4]. Such matters cannot, therefore, be the subject of the taking of protected industrial action under the WR Act.
4.4Further, given that only employers and employees may be parties to certified agreements, there is no scope for the taking of protected industrial action by the many Australian workers who are engaged as independent contractors. Independent contractor arrangements are prevalent in industries such as road transport, construction and textiles, clothing and footwear (among others). Workers in these industry sectors therefore have no right whatsoever to take any form of lawful industrial action under Australian law. Articles 3, 8 and 10 of Convention 87 (from which the right to strike is implied) speak of the rights of “workers”, not of “employees”. There is no reason why the right to strike should be seen as limited in its application to employees. The WR Act fails to provide any right to strike to independent contractors, and therefore breaches Convention 87
4.5Protected industrial action may only be taken during a bargaining period relating to the negotiation of a certified agreement “in relation to employees who are employed in a single business or part of a single business” (section 170MI(1)). There is therefore no provision for the taking of multi-employer or industry-wide industrial action. The ILO has found that similar limitations on strike action are contrary to the principles of freedom of association on the right to strike, and that workers and their organisations should be able to take strike action to obtain multi-employer bargaining outcomes: 1996 Digest, para 490.
“259.As regards the prohibition of strikes or lockouts if they are concerned with the issue of whether a collective employment contract will bind more than one employer, the Committee notes that no really new argument has been submitted by either side, to the mission or to the Committee. It was and remains true that such strikes are prohibited; it was and remains true that employees have the right to strike in support of the content of multi-employer contracts, once such a bargaining option has been chosen. Recalling that the determination of the bargaining level is essentially a matter to be left to the discretion of the parties and that legislation should not constitute an obstacle to collective bargaining at the industry level [Digest, ibid., paras. 632-633] the Committee notes that section 63(e) of the Act is not neutral in that respect, since the impugned provision essentially removes the means of pressure that may be applied for the determination of that level. This does not imply that employers have to accept multi-employer bargaining but simply that the parties should be left free to decide for themselves on the means (including industrial action) to achieve particular bargaining objectives. The Committee therefore reiterates that workers and their organisations should be able to call for industrial action in support of multi-employer contracts.”
4.6A union cannot take protected action unless it has genuinely tried to reach agreement with the employer (section 170MP). Such a restriction on strike action is only permissible where it is accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties can participate at every stage: 1996 Digest, para 501. However this is not the case under the WR Act, which provides that arbitration is available only “as a last resort” (section 89(a)(ii)), and in relation to a limited range of matters (section 89A(2) limits the AIRC’s arbitral, or award-making, powers to twenty “allowable matters”).
4.7Industrial action is not protected if it is engaged in or organised with a “non-protected person”, ie. if it involves a secondary boycott (section 170MM)[5]. Further, once a certified agreement is reached the right to take protected action ends; no industrial action may be taken by employees in support of or to advance claims in respect of their employment, before the nominal expiry date of a certified agreement which covers that employment (section 170MN).
4.8The right to take protected action exists only during a bargaining period for the negotiation of a certified agreement. However the bargaining period may be terminated in a wide range of circumstances, including where the industrial action endangers the life, safety, health or welfare of the Australian population or part of it, or causes significant damage to the Australian economy or an important part of it (section 170MW(1) and (3)). These provisions go well beyond permissible restrictions on the right to strike in essential services, as established by ILO principles (see 1996 Digest, paras 540-545).
4.9Further, the power to terminate a bargaining period where industrial action relates to a demarcation dispute (section 170MW(1) and (5)) is inconsistent with the guarantee of choice of union provided by Article 2 of Convention 87 (see paras 1.2 and 2.1-2.3 above).
4.10In National Workforce Pty Ltd v Australian Manufacturing Workers’ Union[6] the Victorian Supreme Court outlined the limits of the scheme of protected industrial action provided for by the WR Act in the following terms:
It seems clear enough …… that a right to strike is now generally recognised in the civilised world, but equally plainly …… it must be accepted in Australia that that right is now ‘hedged about with qualifications’ according to local legislation …… The (WR) Act now circumscribes the right to strike in this area of ‘certified agreements’, and it does that by according immunity from civil suit to such industrial action only when that action is taken within a ‘bargaining period’ by one or other of the ‘negotiating parties’ (including members and officers), and then only if taken upon the conditions spelt out in s.170ML ff. …… That there might otherwise be some generally recognised right to strike quite apart from the (WR) Act seems then to be irrelevant. …… Complaint about non-compliance with the statutory conditions for industrial action is not well answered by considering what might have been, had the Act not intervened.[7]
4.11In summary, the conditions which have to be fulfilled for unions to take protected industrial action under the WR Act are unreasonable and substantially limit the means of action open to trade unions, and therefore fail to provide for the right to strike implied in Convention 87: 1996 Digest, para 498.
4.12The failure of the WR Act to provide a general right to strike at the national level, or a right to take protest action or action in support of the social and economic interests of workers (other than in relation to a certified agreement), also amounts to a breach of the express and implied rights embodied in Convention 87.
4.13Strikes at the national level are legitimate in so far as they have economic and social objectives, and are not purely political: 1996 Digest, para 492. The right to strike should not be limited solely to industrial disputes aimed at reaching a collective agreement; workers and unions should be able to express their broad dissatisfaction with economic and social matters affecting their interests, including through protest action: 1996 Digest, paras 482 and 484 (see also paras 479-480).
5.Other legal restrictions on strike action
5.1The right to strike in Australia is further curtailed by other provisions of the WR Act, other legislation, and the common law, in breach of the principles of freedom of association.
5.2The conditions that have to be fulfilled in order to render a strike lawful should be reasonable and not place a substantial limitation on the means of action open to trade union organisations. (Digest of 1985 para 377 – a notice period prior to calling a strike may be considered acceptable. Digest 1985 para 381).
5.3The maintenance of residual liability through secondary boycott provisions and common law civil actions substantially limits the right to pursue lawful strike action. The Minister in his Second Reading Speech stated:
“Consistent with the generally accepted principles of collective bargaining, industrial action will be permitted in certain circumstances. Provided conditions are met, there will be a right to take such action and a right to lock out in relation to bargaining for a single … CA or an AWA.
However there will be effective legal remedies available to those who suffer harm from illegitimate industrial action”.
5.4The Minister has erroneously described what constitutes “the generally accepted principles of collective bargaining”. The ILO Freedom of Association Committee has described this right in an entirely contrary fashion:
“A ban on strike action not linked to a collective bargaining dispute to which the employee or union is party is contrary to the principles of freedom of association [284th Report Case No.1575, para 911].
5.5Compare the international right with the Minister’s preferred system:
“Industrial action other than for genuine bargaining for agreements is not compatible with the norms of the system and will not be protected” [p 12 Second Reading Speech].
5.6He then proceeds to outline the areas where the sanctions regime in the WR Act is extended. The Acts simple assumption is that strikes are unlawful until proven to be lawful. It is a system obsessed with sanctions rather than solutions.
5.7The Convention’s standards are much more worker friendly and less obsessed with litigious solutions:
“The right to strike should not be limited solely to industrial disputes resolved through the signing of a collective agreement; workers and their organisations should be able to express in a broader context if necessary, their dissatisfaction as regards economic and social matters affecting their members’ interests.” [Digest of 1985, para 388; and 292 Report Case No.1698 para 741 (m)]
5.8Sanctions in the event of a legitimate strike have no place under freedom of association principles.
“No one should be penalised for carrying out or attempting to carry out a legitimate strike” [See 295th Report Case No 1755 para 343].
5.9Orders may be obtained under the WR Act to prevent unions and workers from taking unprotected industrial action (section 127). Such orders may be enforced by injunctions obtained from the Federal Court.
5.10Proceedings in tort may also be brought against unions for taking unprotected industrial action, once a certificate is obtained under the WR Act allowing this to occur (section 166A). Such a certificate must be granted if the industrial action has not ceased within 72 hours.
5.11The Trade Practices Act 1974 (Cth) (“the TP Act”) also imposes limitations on the right to strike, in the form of injunctions, substantial penalties and liability in damages for secondary boycott action by unions and workers (sections 45D and 45E). These provisions are vigorously enforced by the Australian Competition and Consumer Commission, a statutory body responsible for administering competition laws in Australia.
5.12Sections 45D and 45E of the TP Act breach the principle that workers should be able to take sympathy action providing the initial strike they are supporting is itself lawful: 1996 Digest, para 486. The application of sections 45D and 45E in numerous cases has resulted in not only secondary strikes, but also some forms of primary industrial action, being considered unlawful. The predecessor provision to section 45D has been found by the ILO to render unlawful certain forms of industrial action which should be admissible: Case No 1511 (Australia).
5.13For a brief period (from 1993 to 1996), the prohibitions on secondary boycotts now found in sections 45D and 45E of the TP Act were contained in Part VI, Division 7 of the Industrial Relations Act 1988 (Cth). Peaceful picketing was exempt from liability under those provisions (section 162A of the Industrial Relations Act 1988 (Cth)). However, the exemption of peaceful picketing from liability under the secondary boycott provisions has now been removed by the WR Act. The ILO has found that prohibitions on strike pickets are only justifiable if the strike ceases to be peaceful: 1996 Digest, para 584.
5.14Further limitations are found in the Crimes Act 1914 (Cth) which bans strikes where a serious industrial dispute threatening trade or commerce has been proclaimed, and prohibits boycotts threatening domestic and international trade (sections 30J and 30K). Criminal penalties including imprisonment may be imposed for breaches of these provisions.