Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 320, Marzo 2000

1. 143. The International Confederation of Free Trade Unions (ICFTU) presented a complaint of violations of freedom of association against the Government of Australia in a communication dated 7 May 1998. The International Transport Workers' Federation (ITF), the Australian Council of Trade Unions (ACTU) and the Maritime Union of Australia (MUA) joined the complaint by virtue of communications of 8, 18 and 21 May 1998 respectively. A number of supporting documents were submitted by the ACTU in a communication of 16 June 1998 and by the ICFTU in a communication of 11 August 1998, including copies of relevant court orders and judgements.
2. 144. The Government responded to the allegations in communications dated 2 June 1998, 4 November 1998, 4 March and 15 April 1999.
3. 145. At its June 1999 meeting, the Committee decided to postpone the examination of this case, and invited the Government and the complainants to forward any additional information for the consideration of the Committee (316th Report, para. 7). Additional information was provided by the ACTU in a communication of 11 August 1999, and by the Government in a communication of 6 October 1999.
4. 146. 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. The complainants' allegations

1. 147. In ICFTU's communication of 7 May 1998, it is alleged that governmental action and certain legislative provisions, in relation to the actions of the Patrick Group of Companies (the Patrick Companies) concerning the employment of members of the MUA in its stevedoring operations at a number of Australian ports, violate ILO standards and principles concerning freedom of association and collective bargaining. In particular, the complainants allege that concerted action by the Government and the Patrick Companies was aimed at avoiding strike action as well as dismissing employees on the basis of trade union membership. The substitution of individual agreements for collective instruments is also raised, as well as restrictions on picketing and boycott action. In the context of boycott action, governmental interference with the rights associated with MUA's affiliation with the ITF is also alleged.
2. 148. The complainants state that late in the evening of 7 April 1998, the Patrick Companies issued a public statement announcing that it would be contracting out its stevedoring activities and entering into contracts with a number of companies to supply labour. The Patrick Companies were able to do this because of a complex company restructuring some months before, which had resulted in a situation where four of the Patrick Companies employing MUA workers had their assets transferred to other companies in the group and were converted into labour hire companies, with contracts to supply labour to another Patrick company, namely Patrick Stevedores Operations No. 2 Pty. Ltd. ("Patrick Operations").
3. 149. As a result of the asset stripping, it was claimed that the labour hire companies were insolvent and, according to the complainants, the terms of the labour hire contracts were in fact designed to make insolvency inevitable. Patrick Operations appointed a voluntary administrator to the four companies, which had the effect of terminating their contracts to supply labour. It was then claimed that as there was no work for the 1,400 employees whose work had been contracted out to companies outside the group, they would be made redundant.
4. 150. In the late evening of 7 April and the morning of 8 April 1998, workers on duty at Patrick's facilities around Australia were forcibly expelled in a coordinated action involving specially recruited personnel with attack dogs. Most of the employees concerned learned that they had no work through the media reports.
5. 151. According to the complainants, three minutes before the Patrick announcement, the Minister for Workplace Relations and Small Business issued a statement supporting the actions of the Patrick Companies in restructuring its business, terminating its existing contracts with its labour hire companies and replacing them with new contractors. Later that evening, the Minister held a press conference during which he said that the Patrick Companies and the Commonwealth of Australia had been preparing these events for weeks, and that "hardly a day has gone by when we have not discussed the range of options available to employers". The following morning, the Minister introduced the Stevedoring Levy (Collection) Bill 1998 into Parliament, providing for a scheme to collect a levy from all stevedores to fund the Government's undertaking to meet the costs of redundancy payments to the displaced MUA members.
6. 152. The action by the Patrick Companies and the Government occurred on the eve of the commencement of the hearings in the Federal Court of Australia upon an application by MUA to restrain the Patrick Companies from dismissing the workers concerned. The union was subsequently successful in the Federal Court in obtaining interim orders compelling the Patrick Companies to obtain labour from the labour hire companies, and preventing the dismissal of the workers. The judge of the Federal Court found that it was arguable that the dismissals were due to the employees being members of MUA, and therefore that there had been a breach of section 298K (anti-union discrimination) of the Workplace Relations Act, 1996. The judge found further that there was an arguable case that these acts amounted to a breach of the employees' contracts of employment, and that the Patrick owners and Patrick employers had engaged in unlawful conspiracy. The orders were upheld by the Full Court on appeal, and were substantially upheld by the High Court on subsequent appeal. However, although the workers have not technically been dismissed, they have no work and are not being paid, thus amounting to constructive dismissal.
7. 153. The complainants submit that there is clear evidence that the Patrick Companies had been planning this action for many months, including the clandestine training of replacement workers in Dubai, some being serving and former members of the Australian Defence Force, with the encouragement and assistance of federal ministers and officers. When evidence of this exercise was revealed and following representations from the international trade union movement, the Dubai authorities intervened to end the training. Documents were forwarded in support of the assertion that the Government supported the training of replacement workers. The first is a memorandum dated 21 September 1997 to the Minister of Transport from his adviser recounting that further discussions had been held with the CEO of the Patrick Companies and stating that "it appears that training times can be advanced and a late January implementation would be possible ... He would need to have an indication by (1 October) so that he can reactivate the training bookings". Another document is an affidavit signed 6 May 1998 of a person operating a recruitment business who swears to have been contacted by the adviser to the Minister of Transport on 30 July 1997 asking him to contact the CEO of the Patrick Companies about a possible job. This job involved the recruitment and training of ex-military personnel to work on the docks in Australia. The training was to be done in Dubai. He claims that at all times, the CEO of the Patrick Companies made it clear that he had the support of the federal Government and that he was reporting back to the Government.
8. 154. The complainants assert that the Patrick Companies' manipulation of corporate structures to avoid the obligations to the employees, and the employment of replacement labour in order to avoid union membership or strike action constitute serious violations of freedom of association. A minority of the workers terminated were involved in lawful industrial action pursuant to the Workplace Relations Act, 1996 at the time of dismissal; however, the majority were not involved in any industrial action and none were involved in illegal industrial action. In the view of the complainants this, together with the basis for the constructive termination being union membership, constitutes serious anti-union discrimination contrary to the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
9. 155. In addition, the right of collective bargaining, the complainants submit, has been violated since some of the terminated MUA workers and all the non-union replacement workers have been offered re-employment or employment on the condition that they work under individual contracts (Australian Workplace Agreements - "AWAs") rather than a collective instrument. The complainants state that AWAs do not recognize the role of the unions in the bargaining process and are secretive in nature. The complainants indicate that the legislation gives the Patrick Companies the capacity to insist upon individual contracts (AWAs) rather than enabling collective bargaining instruments to be retained, thus highlighting a deficiency in the Workplace Relations Act, 1996 that is contrary to the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) already identified by the ILO Committee of Experts on the Application of Conventions and Recommendations.
10. 156. The complainants go on to state that the Patrick Companies have sought and obtained civil restraining orders prohibiting union picketing (even if peaceful in nature) in some state jurisdictions. Failure of the union or the members to comply with these orders exposes them to contempt proceedings, making them liable to imprisonment, fines and civil damages.
11. 157. The complainants contend that there has been clear and ongoing support by the Australian Government for the Patrick Companies' action, and that there are indications of involvement of the Government in the Patrick Companies' strategy; further, the Government continues to support publicly the actions of the Patrick Companies. The complainants note by way of example the statement made in a briefing paper prepared by the Assistant Secretary, Industry Strategy Team of the Department of Industrial Relations, for the Minister of Industrial Relations dated 10 March 1997 proposing the following strategy: "... stevedores would need to activate well-prepared strategies to dismiss their workforce and replace them with another quickly in a way that limited the prospect of, for example, the Commission ordering reinstatement of the current workforce." A copy of this briefing paper was included with the complaint. The complainants also point to the statement of the Prime Minister during an interview on national television on 9 April 1998 that the workers were dismissed because of their membership in the union: the Prime Minister, responding to the question of why waterside workers at productive ports such as Adelaide were among the 1,400 MUA members "sacked" on that day stated, "Well they're all part of the one union ... some innocent people get affected." A copy of the transcript of that interview was also forwarded in support of the complaint.
12. 158. Another document forwarded in support of the complaint is a Cabinet paper entitled "Waterfront strategy - Supplementary paper", dated 7 July 1997. The contents of this document had been made public through an article in a national newspaper, the Age. The document is prepared under the names of the Minister for Industrial Relations and the Minister for Transport and Regional Development. It begins with the heading "objectives", under which is stated:
    • -- Increased economic growth and employment opportunities through the establishment of a reliable and cost effective waterfront.
    • -- Removal of MUA/ACTU control over the waterfront and therefore its use as a political/industrial weapon.
    • -- To demonstrate the effectiveness of the Government's industrial relations and transport reforms, which will have a flow on effect into other sectors of industry.
      • The paper then sets out the following two strategic options open to the Government based on a government study:
    • -- Evolutionary, whereby Government adopted an incrementalist approach and allowed the processes of the Workplace Relations Act to work their way through the system and, over time, the stevedoring industry would reform itself.
    • -- Activist, under which the Government would take a more active role in promoting change, in cooperation with the major stevedores. It canvassed the prospect of industrial action that would give the stevedores the option of dismissing their employees and rehiring new people under different arrangements.
      • The paper concludes with a series of recommendations to Cabinet, including "planning for the activist approach". A similar document was tabled in Parliament on 2 July 1998, with "activist" becoming "interventionist", and the interventionist approach being recommended.
    • 159. The complainants state that Australian union officials have also been threatened with legal action by government officials with respect to their involvement in an international trade union organization (ITF). In support of this allegation, a letter from the Australian Government Solicitor, acting on behalf of the Australian Competition and Consumer Commission (ACCC), dated 17 April 1998, has been forwarded. Appended to the letter is an enforceable undertaking that MUA is requested to sign concerning MUA's involvement with ITF with respect to an international boycott. An order dated 27 May 1998 of the Federal Court of Australia, New South Wales Registry, was also forwarded granting an interim injunction to restrain MUA from being involved in an international boycott or asking ITF for assistance in the form of a boycott. The effect of this as well as rendering the unions and their officials liable to fines and damages would, according to the complainants, be to stop the MUA and others from communicating with the ITF. The complainants stress that the right to affiliate with international organizations of workers implies the right of representatives of national trade unions to maintain contact with the international trade union organizations to which they are affiliated, to participate in the activities of these organizations and to benefit from the services and advantages offered on the basis of their membership.
13. 160. The Australian unions and their officials have also been threatened with legal action by the ACCC, a federal statutory body, for engaging in sympathy or boycott action. The complainants state that the provisions on which the legal action would be based, namely sections 45D and 45E of the Trade Practices Act, are inconsistent with the terms of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

B. The Government's reply

1. 161. In its communication of 2 June 1998, the Government rejects the complainants' claims alleging violations of freedom of association. By way of an interim response, the Government states in its communication of 4 November 1998 that the dispute between the Patrick Companies and its employees and MUA has been fully settled. All litigation arising out of the dispute has been dismissed or discontinued. The Government states that there are agreements approved by the Australian Industrial Relations Commission under Australian law governing new working conditions. All employees who are made redundant in accordance with the agreed settlement arrangements are being paid their full redundancy entitlements.
2. 162. The Government states further that throughout the dispute, the claims made by MUA and employees of the Patrick Companies had been denied by the Commonwealth of Australia and the Minister for Workplace Relations and Small Business and liability was contested. According to the Government, prior to settlement in the courts, no relevant findings had been made against the Commonwealth or the Minister by any Australian court. The settlement means that none of the previous proceedings arising from the dispute (including certain actions against MUA) have been finally tried before a court. The Government notes that it has recently been served with legal proceedings filed in the Federal Court of Australia by two former stevedoring employees. The Commonwealth of Australia and the Minister are named as two of a number of respondents to these proceedings. Other former stevedoring employees subsequently commenced similar actions. The Government states that:
   • Whilst the claims made by the applicants appear to arise out of essentially the same events as the claims enumerated in the ICFTU's complaint, the particular issues raised by the applicants are not covered by that complaint. However, in the interests of the administration of justice in the Federal Court proceedings, the Government must, in responding to the complaint, ensure that the proceedings are not prejudiced in any way. Accordingly, the Government is constrained in responding to the ICFTU's complaint.
3. 163. In its communication of 12 April 1999, the Government submits that the complainants fail to give proper recognition to the laws protecting the rights of workers to freedom of association, and to recognize the fact that waterfront reform is a matter of public interest which is properly the subject of government attention. While asserting that it is not in a position to provide a response to the particular allegations against the Patrick Companies in respect of matters that are only within the knowledge of its managers or directors, the Government states that the Patrick Companies rejects the allegations made against it by MUA.
4. 164. The Government draws attention to the Workplace Relations Act, 1996 (the Act), which governs industrial relations at the federal level. The Government states that the Act includes extensive provisions that protect trade unions and their members from violations of freedom of association and provides remedies where breaches occur. The Government points in particular to Part XA of the Act which aims to ensure that employers, employees and independent contractors are free to join industrial associations of their choice or not to join them, and that they are not discriminated against because they are or are not members or officers of industrial associations. The Government states that it did not engage in any conduct that contravened Part XA or any other law, nor would it support such conduct. MUA and its members were, however, free to pursue remedies in respect of any conduct which they considered may have contravened these laws. Proceedings were in fact commenced by MUA in the Federal Court alleging a violation of Part XA, resulting in the granting of an interim injunction on 21 April 1998. As a consequence of the interim injunction, no action could be taken to dismiss the Patrick Companies' employees: their employment would continue at least until the case was finally determined.
5. 165. Regarding its waterfront policy, the Government states that it has consistently offered its support for lawful conduct directed towards the reform of waterfront work practices to achieve efficient and reliable stevedoring operations. When it took office in March 1996, central to its policies were a range of far-reaching economic reforms. The Government considered that it was essential and urgent that the competitiveness and economic efficiency of key industries be improved, including the shipping industry and the stevedoring industry. The Government regarded productivity levels in Australian stevedoring as unacceptably low, as they were well below those of comparable international ports, and the level of industrial disputes had been unacceptably high. The Government states that the performance of the Australian stevedoring industry is particularly important to the country's well-being, as it is an island continent heavily dependent on its ports. Given the country's dependence on shipping for almost all its import and export activity, the Government submits that "industrial disputation on the waterfront can quickly lead to an essential services crisis".
6. 166. Stevedoring services are critical because, according to the Government, they influence both the cost and timeliness of transporting imported and exported goods, and reliability affects both timeliness and cost. Flexibility in the use and allocation of labour is critical to stevedore workplace performance because of the highly variable demand for services. The Government states that its view, supported by findings of the Productivity Commission, is that the difficulties experienced in establishing more productive labour practices in the stevedoring industry are closely connected with the virtually exclusive coverage of waterfront labour by MUA. The Government cites findings of the Productivity Commission to the effect that the stevedoring industry is characterized by complex, inflexible and prescriptive work arrangements, and that stevedores contended that MUA's bargaining power, as the de facto sole supplier of labour, is a major impediment to changes in work arrangements and improved performance. The Government also cites the statement of the Minister made during an interview given on 4 May 1998: "... the Government's objective is significant reform of the Australian waterfront ... What we want is to see genuine competition on the waterfront ... we want to see an end of the monopoly power because the monopoly power has lead to productivity outcomes which make this country a laughing stock".
7. 167. The Government points in particular to two elements of MUA's exclusive coverage arrangements: (i) prior to the enactment of the freedom of association provisions of the Act, "closed shop" arrangements were able to operate with impunity in the stevedoring industry, effectively preventing the employment of any person who was not a member of MUA; (ii) stevedoring operational employees at the major ports had virtually no choice of which union should have the right to represent them as no unions apart from MUA had the right to enrol them as members, which could not have been achieved without the legal framework of the previous industrial relations legislation, which has now been revised. The Government states that as at April 1998, virtually all operational employees employed at the major ports, including clerks, machinery operators, general duties and some maintenance employees were members of the MUA. Supervisors and planners were members of the Australian Maritime Officers' Union and in some terminals, electricians were members of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU). Over time, the MUA (and its predecessors) had acquired the right to represent operational employees to the exclusion of other unions to which many of these employees had traditionally been able to belong. In 1978, the Waterside Workers' Federation of Australia (one of the constituent unions which amalgamated to form the MUA) adopted a strategy of enrolling as members waterfront employees who were eligible to belong to other unions. Its objective was to secure the right to represent employees engaged in the full range of stevedoring operational activities. At that time, several other unions were entitled to enrol stevedoring employees engaged in trades, clerical, administrative, labouring, cleaning, maintenance, grain handling, coal handling, crane driving, container depot and road transport loading activities. Many such employees belonged to these other unions. In addition to enrolling as members employees who had been covered by other unions, the Waterside Workers' Federation secured the right to represent these employees to the exclusion of the other unions to which they had traditionally belonged.
8. 168. These monopoly representation rights were achieved by MUA's predecessor through a combination of inter-union agreements, union amalgamations, and successful applications to the Australian Industrial Relations Commission (AIRC) under the previous legislation for orders for exclusive coverage of the employees concerned. According to the Government, with the adoption of the Workplace Relations Act, 1996, the relevant provisions were amended to make it easier for employees to form and register unions, for existing registered unions to enrol and represent employees who wish to have their interests protected and advanced by those unions, and gave greater rights to employees to choose whether or not to belong to a union. The Government adds that the legislative reforms are applicable across all industries; however, given the "virtual monopoly" of MUA on the waterfront, the new provisions were of particular relevance to the stevedoring industry. Despite these legislative changes, the Government states that MUA has resisted attempts by other unions to represent the rights of workers engaged in stevedoring activities. The Government cites as an example serious industrial action by MUA members employed at the Port of Newcastle as a response to the performance of certain stevedoring work by members of the Transport Workers' Union whose employment is regulated by a "greenfield" agreement which was certified by the AIRC in July 1998.
9. 169. On 8 April 1998, the Government announced in Parliament that it had developed a framework for reform of the waterfront. The Government states that the announcement followed extensive discussions with employers' organizations, unions, stevedoring companies, ship operators, state governments, port authorities and shippers. The framework consists of the following objectives:
   • -- An end to overmanning and restrictive work practices.
   • -- Higher productivity via a commitment from the major stevedores to a benchmark of 25 crane movements per hour as a national five port average for constant improvement.
   • -- Greater reliability through less industrial action and less interruption through the elimination of disruptive work practices.
   • -- Reduced injury and fatality levels for waterside workers.
   • -- Lower costs for exporters and importers through the logistics chain.
   • -- Full and effective use of existing and new technology.
   • -- Improved training.
10. 170. With respect specifically to the Patrick Companies, the Government sets out background information to the events to which the complaint relates, including the structure of those companies. The Government states that the Patrick Companies sought to improve economic efficiency and competitiveness through improved labour practices, and to this end it negotiated with MUA and other relevant waterfront unions and entered into various collective agreements with them. Generally, these agreements have not been made legally enforceable as may occur by having them certified under the Workplace Relations Act. However, an agreement relating to the Melbourne operations was certified and, in the view of the Government, is important in the context of the dispute that arose between the MUA and the Patrick Companies. Where agreements have not been formalized, basic terms and conditions of employment are provided by awards made by the Australian Industrial Relations Commission (the principal award is the Stevedoring Industry Award 1991).
11. 171. According to the Government, the events to which the complaint relates appear to have been the culmination of a lengthy period of industrial tension between the Patrick Companies and MUA, resulting from proposals by the Patrick Companies to introduce more efficient and flexible work practices and the resistance of MUA and the employees to those proposals. In December 1996, the AIRC certified under the Workplace Relations Act an industrial agreement between the Patrick Companies, the MUA and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU). The agreement covered employees engaged in the Patrick Companies' Melbourne-based stevedoring operations. Throughout 1997, the company and the MUA attempted to negotiate in respect of a number of issues arising in relation to the operation of the agreement. The Government notes the unsuccessful attempts made to negotiate concerning a number of issues including work organization, staffing levels and the introduction of new technologies. Contrary to the intention of the agreement, productivity levels had fallen since its certification in December 1996. The Australian Industrial Relations Commission made a number of recommendations including with respect to voluntary redundancies, and observed that "there is also significant weight in the argument that a sensible programme of redundancies be implemented". In December 1997, the company and MUA reached an agreement on the introduction of new work practices to improve productivity, but MUA members rejected the agreement. The company decided to implement the changes in any event, and successfully applied to the Australian Industrial Relations Commission for orders preventing industrial action. The Government also points to industrial action taken and pickets set up at another of the Patrick Companies' Melbourne docks in response to subleasing arrangements that had been made at Webb Dock to PCS Operations which the workers viewed as a threat to their employment. The Australian Industrial Relations Commission ordered the employees to return to work after 18 days, causing employees at another of the Melbourne docks to take industrial action in protest.
12. 172. On the issue of the termination of the labour hire agreements, the Government confirms that on 7 April 1998, the Patrick Companies terminated the agreements with four of the Patrick Companies (the labour hire companies). The labour hire companies had been established as part of the corporate restructuring in September 1997 to employ Patrick's operational workforce. The labour hire contracts were terminable in the event that the labour hire companies could not maintain the supply of labour, which arose due to a series of stoppages at various Patrick facilities in early 1998. On 7 April 1998, a seven-day strike commenced at one of the Patrick Companies' New South Wales facilities, bringing the total days of strike action affecting the Patrick Companies since the start of that year to 43. Due to the termination of the labour hire contracts, the labour hire companies lost their only significant asset and were rendered insolvent. The Government states that according to the Patrick Companies, it was not a matter of terminating the employment of the workers because of their membership of a trade union, but of ceasing the operation of the companies concerned. On 7 April 1998, the Patrick Companies also announced that it had entered into contracts for a range of services from nine non-Patrick companies, in an endeavour to continue its stevedoring business with labour provided by the new contractor. Its ability to continue its stevedoring operations was significantly restricted by the picketing activities of MUA, its members and others. Interim injunctions granted by the Federal Court on 21 April 1998 brought the use of the contracts with the non-Patrick companies to an end and required the Patrick Companies to treat the labour hire agreements with its own companies as still in effect. The Government stresses that these and other relevant proceedings were settled by the parties before trial. The Government also states that according to its 1998 Annual Report, the number of containers moved by the Patrick Companies increased 20 per cent, while under the new agreements reached as part of the settlement of the litigation, the number of employees fell by approximately 50 per cent.
13. 173. The Government then sets out in some detail the series of legal proceedings relevant to the events of 7-8 April 1998, including those initiated by MUA seeking reinstatement of the employees concerned and separate proceedings for damages alleging unlawful conduct by 29 respondents including the Patrick Companies and the federal Government; proceedings initiated by the Patrick Companies and by P&O Stevedoring for injunctions to stop or prevent picketing at various facilities; and proceedings initiated by the Australian Competition and Consumer Commission (ACCC) against MUA alleging breaches of the Trade Practices Act, 1974.
14. 174. With respect to the proceedings initiated by MUA, the Government refers to the interim injunction of 21 April 1998 noted above, emphasizing that in dealing with interim orders of this type, a court is required to determine whether there is "a serious question to be tried" and whether "the balance of convenience" favours making the orders: no final determination of the substance of the case is made. On appeal, the Full Court of the High Court on 4 May 1998 found that certain of the orders interfered with the discretion conferred upon the administrators pursuant to the Corporations Law to make decisions regarding whether to resume trading, and in what form any such business should be undertaken. Negotiations took place between the parties, resulting in an application by the parties to the Federal Court on 5 August 1998 to stay the proceedings and cancel the procedural directions thus far given. The proceedings were subsequently dismissed as part of the settlement of the dispute.
15. 175. The Government also sets out the details of the actions by employers, primarily the Patrick Companies, for injunctive relief in various state supreme courts and in the United Kingdom directed mainly at the picketing and besetting of terminals. In all cases, the injunctions were of an interim nature, with no final determination being made. The Government also notes that the injunctions granted in Australia in the cases of which it is aware were directed towards restraining conduct that attempted physically to prevent ingress to or egress from premises or that involved violence or the threat of violence against persons or property. There were serious concerns in New South Wales, Victoria and Western Australia about the maintenance of public order. In a number of instances, the tension erupted into violent behaviour by the picketers. The Government provides details of the injunctions granted, including interim injunctions issued on 16 April 1998 by the Supreme Court of New South Wales on the application of the Patrick Companies restraining the MUA and others from engaging in acts constituting tortuous behaviour. In reaching his decision to issue injunctions, the judge found that there was prima facie evidence of conduct that caused physical injury and property damage and stopped, or at least seriously interfered with, the operation of those terminals. The conduct included throwing rocks and other objects at workers and security personnel, threats of physical harm, verbal abuse and damage to property. An interlocutory injunction was also issued by the Supreme Court of Victoria on 20 April 1998 restraining the MUA and all persons from engaging in a broad range of activities at the Patrick Companies' Melbourne terminal. In granting the relief, the judge observed that the material before the Court demonstrated that many of the picketers had engaged in serious criminal behaviour, including trespass and nuisance involving threats, harassment and besetting by hostile intent. The injunction was varied on appeal to appl only to the MUA and certain union officials. Details of other injunctions granted in the Supreme Court of Victoria and the Supreme Court of Western Australia are also provided by the Government. In some cases, proceedings were initiated for alleged contempt of the injunctions, but were not pursued: the Government states that it is not aware of any instance where a penalty for non-compliance with an injunction was imposed on MUA, its officers or members. The settlement of the dispute between the Patrick Companies and MUA led to the withdrawal of all such proceedings. In the United Kingdom, the Patrick Companies obtained a seven-day temporary injunction from the High Court against action by the London-based ITF against the company's economic interests.
16. 176. With respect to the ACCC actions against the MUA, the Government states that the ACCC's responsibilities include the enforcement of the Trade Practices Act, 1974, which prohibits anti-competitive practices, including certain secondary boycotts and certain boycotts that harm interstate, territorial or overseas trade or commerce. The Government stresses that the ACCC is an independent statutory authority and the Government has no power to direct it to commence or abandon any proceedings. The Government states that the letter dated 17 April 1998 supplied with the complaint cannot properly be regarded as a threat, or in any way improper. The ACCC, through the Government Solicitor, was informing MUA of its concerns about possible breaches of the Trade Practices Act and that such conduct could result in prosecution under that Act. The ACCC's concerns were then explained to MUA in discussions which were intended to avert continuing breaches of the Act, but which failed to do so. The Government surmises that the ACCC's explanations may have also been viewed as a threat. As a consequence of the failure of MUA to address the ACCC's concerns, it instituted proceedings on 22 May 1998 in the Federal Court alleging that MUA had engaged in boycott activities for the purpose and with the effect of stopping the Patrick Companies and other stevedores from engaging in international trade or commerce in contravention of the Trade Practices Act. The particular conduct was alleged to include the following:
    • -- taking steps to get the ITF and its affiliates to organize and implement an international ban of ships and shipping lines, which were loaded or unloaded with non-MUA labour in Australia;
    • -- threatening ships and shipping lines that they would be the subject of such bans if they used Patrick or other companies using non-MUA labour;
    • -- organizing a campaign of domestic boycotts of Patrick operations because it used non-MUA labour, including:
    • -- -- withdrawal of labour for tugs and lines to impede ships berthing at Patrick terminals; and
    • -- -- blockading of Patrick terminals to stop transport companies delivering and picking up cargo.
17. 177. The Government states further that interim orders restraining MUA, its National Secretary and a representative from ITF from taking any action to bring about a boycott of certain ships loaded or unloaded in Australia using non-MUA labour was granted by the Federal Court on 27 May 1998. The ACCC commenced further Federal Court proceedings against MUA on 27 May 1998 in relation to the boycott of stevedores serving ships formerly contracted to the Patrick Companies using labour other than from the Patrick labour hire companies. On 12 June 1998, MUA advised the Federal Court that it would write to ITF withdrawing any call for the ITF or its affiliates to engage in boycott conduct of ships loaded in Australia with non-MUA labour. The ACCC advised the Court that this withdrawal addressed some of its concerns and that it was prepared for the matter to be adjourned to establish whether the withdrawal was effective. The Government notes that commencing on 19 June 1998, there were discussions between the parties to this dispute and the ACCC concerning a possible settlement. In a confidential letter to MUA, the ACCC outlined the relevant parameters for such a settlement. On reaching a settlement with MUA, the ACCC's Federal Court applications were dismissed by consent. The terms of the settlement included a dispute settlement procedure to deal with any alleged breach of MUA's undertaking not to engage in conduct in contravention of particular provisions of the Trade Practices Act.
18. 178. The Government then provides details of the settlement between MUA, the Patrick Companies and other parties to the waterfront dispute. Agreement on the terms for settlement of the dispute was reached on 5 August 1998 and required the following:
    • -- certification under the Workplace Relations Act of collective enterprise agreements made between the Patrick Companies and MUA;
    • -- the execution of a deed of company arrangement for each of the four Patrick labour hire companies then under administration (a procedure under the corporations law to resolve the financial position of insolvent companies);
    • -- discontinuance or dismissal of all current legal actions by the parties;
    • -- arrangements for paying redundancy monies to those employees who were made redundant as a result of the agreement; and
    • -- the action initiated by the ACCC "be discontinued, settled or dealt with to the reasonable satisfaction of the MUA".
19. 179. On 2 September 1998, applications came before the Australian Industrial Relations Commission for the certification under the Workplace Relations Act of the Patrick Terminals Enterprise Agreement 1998 and the Patrick General Stevedoring Enterprise Agreement 1998. The agreements were certified on 3 September 1998 and are in force for three years. In addition to the certification of those agreements, the settlement of the dispute included:
    • -- payment by the Patrick Companies of A$5 million over 15 months into a settlement fund (administered by a trustee) to be made available to small businesses affected by the dispute, with a further payment of A$2.5 million in 2001, subject to certain financial targets being met;
    • -- an undertaking by MUA to the Federal Court that it will not engage in conduct in breach of section 45D(1) or 45DB(1) of the Trade Practices Act for a period of two years (subject to certain exceptions), and will not engage in industrial action against the Patrick Companies for a period of three years (which is the term of the certified agreements);
    • -- a number of MUA members employed by the Patrick Companies becoming redundant, with some of those persons subsequently being employed by employers contracted to work on Patrick facilities; and
    • -- the discontinuance or dismissal of all legal actions by all parties.
20. 180. The Government notes that redundancy payments for MUA members declared redundant under the settlement have been met from funds provided by a government-owned company. These funds, which, subject to certain conditions, are available to any redundant stevedoring employees, are to be ultimately recovered under the Stevedoring Levy (Imposition) Act 1998 and the Stevedoring Levy (Collection) Act 1998. A total of 826 out of 1,427 Patrick employees became redundant. The Government goes on to explain the background to the passage of the two Acts, and states that the legislation was part of the reform measures to eliminate significant overstaffing. The Acts raise a levy on stevedoring operations to fund the Government's administrative arrangements designed to facilitate urgently needed restructuring and ensure that the industry is responsible for such funding. The Government states that it is also relevant to note that the Minister for Workplace Relations and Small Business had been holding discussions with the MUA and ACTU about waterfront and maritime reform, including the adoption of benchmarks, since August 1996. At a December 1997 meeting, the parties were informed that it had been decided that provision would be made for the funding of redundancies in the shipping and waterfront industries. The Government had been developing its proposals, including the legislation, which was designed to provide financial support for reform of the industry (including by reform-related redundancies), following that decision. The Government also notes that previous reform initiatives in the industry have been facilitated by the governments of the day, including by financial assistance under legislation for the funding of redundancies.
21. 181. Regarding the allegation that workers were forcibly expelled on 7-8 April 1998, the Government states that, to its knowledge, violence was not involved in escorting the employees from the various workplaces. On the issue of the Dubai training exercise, the Government denies that it had any prior knowledge of the training of replacement workers in Dubai. The Government acknowledges that after the Dubai training exercise became public knowledge, it became aware that some former and serving Australian Defence Force personnel had travelled to Dubai, or were preparing to travel there, to be trained by the Patrick Companies as replacement stevedore labour. The Government had stated publicly on 4 December 1997 that all the serving Australian Defence Force personnel involved were either on long-service leave or recreation leave, and that any serving personnel who had failed to obtain the necessary approval to engage in outside employment would be disciplined upon their return.
22. 182. Concerning the alleged government support for the Patrick Companies' strategy, the Government states that this must be considered in the context of the importance it attaches to achieving general reform of the waterfront and the legitimate role any government has in pursuing reform within the law. Consistent with its policy, the Government expressed support for lawful actions of employers, including the Patrick Companies, to achieve greater productivity, including by ending MUA's monopoly on waterfront labour. Whether the actions of the Patrick Companies were lawful is a matter which would have been tested before the Federal Court in the proceedings initiated by MUA had the dispute not been settled and the application withdrawn.
23. 183. With respect to the briefing paper of 10 March 1997 referred to in the complaint, the Government states that the paper did not propose the strategy outlined in the passage quoted by the complainants, but raised it in a much longer briefing document as a matter that might arise in forthcoming discussions between the Minister of Industrial Relations, the Minister for Transport and Regional Development, and the representatives of the two major stevedoring employers. The Government stresses that the paper was not promoting a strategy to dismiss the workforce on the Australian waterfront. It contends that merely because a particular course of action is proposed or discussed in a background briefing paper prepared by officials does not mean that the Government will endorse or adopt the proposed course of action. With reference to the comments of the Prime Minister that the workers were "sacked" because of their membership in MUA, the Government cites other responses by the Government in the same interview: "... clearly the union had declared war on the company and the union leadership, for years, has refused the blandishments of employers and other governments to bring more productive and more competitive practices to the waterfront ... one of the consequences of having a bargaining monopoly ruthlessly used in the hands of the union that won't listen to reason is that some innocent people get affected". The Government states that the interview took place the day after the events in question, at which stage the public and the media were unclear as to whether the workers concerned had been dismissed or made redundant: as in fact neither of those things happened, the use of the word "sacked" by the journalist was inaccurate.
24. 184. The Government also refers to the Cabinet-in-confidence document of 7 July 1997 entitled "Waterfront strategy - Supplementary paper" that was provided as supporting documentation by the complainants. The Government asserts firstly that the document had not been publicly released and could not legitimately have come into the possession of the complainants. The Government then confirms that the document is broadly consistent with its policy concerning waterfront reform, including bringing an end to the monopoly of MUA over waterfront labour. The Cabinet-in-confidence document notes that, driven by economic imperatives, the Patrick Companies had decided to implement reform measures, if necessary without the aid of the Government. The Government states that given the history of MUA's resistance to measures designed to improve efficiency and productivity, the Government anticipated that any such measures would be strongly resisted, and considered that such resistance would take the form of widespread and protracted industrial action designed to bring the waterfront to a standstill. In the view of the Government, "if pursued, such a stoppage would create a national crisis. It would seriously harm the well-being of the Australian population and inflict significant damage on the Australian economy". The Government states that unless it were prepared to meet this eventuality, MUA would succeed in actions which were contrary to the public interest, including the prevention of any significant reform measures on the waterfront. The Cabinet-in-confidence document, therefore, suggested a number of measures that the Government could consider undertaking to assist in ensuring that, in the event of widespread industrial action, the waterfront would continue to function. However, since the industrial action taken in 1998 did not bring the waterfront to a standstill, the Government did not need to give further consideration to measures that might be taken to deal with such a crisis. The Government also refers to a statement of 4 June 1998 by the Minister for Workplace Relations and Small Business made in Parliament in answer to a question from the opposition concerning the Cabinet-in-confidence document:
    • ... as far as this document is concerned, it simply notes the fact that we have an activist approach to waterfront reform, which we have said publicly. We make no apologies for it ... What was the Government's policy approach? It was to set the scene to facilitate the changes that the stevedores and others want to make and to give them the political and regulatory tools to get their businesses working again as quickly as possible in the event of industrial action ...
25. 185. Concerning the allegations of discrimination in employment, the Government states that the issue of the involvement of the workers concerned in lawful industrial action is irrelevant since no employees were dismissed as a result of the actions on 7-8 April 1998, and the company's actions were not related to the workers being engaged in industrial action, lawful or otherwise. With respect to the allegation that the Patrick Companies manipulated the corporate structure to make the workers concerned redundant, to avoid its obligations to the employees, to facilitate the employment of non-union replacement labour and to avoid industrial action, the Government states that decisions concerning the corporate structure were matters for the management of the Patrick Companies. The Government notes that although the Federal Court judge found that there was a serious question to be tried as to whether one reason for the corporate restructuring was that termination of the employees would be the probable outcome, no conclusive findings of fact were made. Even if it is accepted that corporate restructuring resulted in the employees concerned becoming redundant, the Government asserts that this is a common occurrence, which does not in itself disclose a violation of freedom of association principles.
26. 186. With respect to the allegation that some MUA members and all the non-union replacement labour were offered employment or re-employment on the condition that they worked under individual agreements (Australian Workplace Agreements (AWAs)) rather than collective instruments, the Government states that it is not in a position to comment on whether such conditions were imposed. However, it states that the settlement of the dispute between MUA and the Patrick Companies did not require the employees concerned to enter into individual agreements: the terms and conditions of employment of the Patrick Companies' stevedoring workforce are governed by two collective agreements to which MUA is a party, which were certified on 3 September 1998.
27. 187. The Government states further that it is not accurate to claim that AWAs do not recognize the role of unions in the bargaining process and are secretive in nature. In this respect, the Government refers to its report submitted pursuant to article 22 of the ILO Constitution under Convention No. 98 and its response to comments by the ACTU on the application of that Convention. The Government stresses that although a trade union cannot be party to an AWA (reflecting its nature as an individual agreement between an employer and an employee), an employee may appoint a trade union to represent the employee during the bargaining process, and an employer must recognize a bargaining agent duly appointed. As to the allegation that the AWAs are "secretive" in nature, the Government states that it is true that generally information concerning AWAs must not be disclosed by a government official if that information would identify the parties to the AWA. Such disclosure is, however, permitted when it is authorized by the regulations or in writing by a party to the AWA. The prohibition on disclosure does not apply to the parties to the AWA. The Government asserts that it does not accept that in the context of the federal industrial relations system, AWAs are in any way inconsistent with the principles of freedom of association or collective bargaining. According to the Government, they simply provide a new alternative within the formal system for those who do not wish to bargain collectively. The Workplace Relations Act also continues to promote and facilitate the making of voluntary collective agreements.

C. Additional information supplied by the complainants

1. 188. In a communication of 11 August 1999, the complainants respond to the Government's reply. Firstly, the complainants state that they do not consider that the fact of settlement of the dispute between the Maritime Union of Australia (MUA), the Patrick Companies, the Government and other third parties bears on the issue of whether serious violations of the principles of freedom of association occurred prior to and during the dispute. The complainants assert that the Government in its response attempts to separate itself from the actions of other parties, ignoring its responsibility to ensure that employers and others within the Australian jurisdiction do not violate trade union rights. Furthermore, the fact that MUA was able to obtain interlocutory relief preventing the dismissal of its members and the employment of substitute labour does not in their view alter the fact that the Government, in concert with other parties, engaged in activities in clear breach of freedom of association principles.
2. 189. With respect to the interlocutory court decisions, the complainants state that while they involved preliminary findings in relation to the facts which are relevant to the Committee, the issues for determination are not the same. In any event, these events are still the subject of legal proceedings involving employees who were employed in place of MUA members, and subsequently dismissed when the dispute was resolved. The complainants note that proceedings have also been initiated in the Federal Court by a member of the House of Representatives to obtain access to documents relevant to the dispute pursuant to the Freedom of Information Act.
3. 190. Regarding the Government's waterfront policy, the complainants submit that the Government's stated concerns about the competitiveness of the Australian waterfront are not relevant to whether there has been a breach of freedom of association principles. Any changes in work practices or employment need to be done in a manner consistent with both Australian and international law. The Government's objection to the actions of the MUA and its members in relation to efficiency and productivity issues were being addressed prior to the dispute through the normal collective bargaining, conciliation and arbitration processes. Furthermore, despite the significant differences in productivity levels at various Patrick Companies' facilities throughout the country, all MUA members were removed from their employment regardless of the productivity levels at the facilities at which they worked. In this context, the complainants recall the statement of the Prime Minister during an interview on national television on 9 April 1998, referred to in the original complaint. The complainants submit that the final settlement of the dispute, reflected in the agreement between the MUA and the Patrick Companies which was certified by the Industrial Relations Commission, demonstrates that change is possible without victimization of union members and replacement of collective agreements with individual contracts.
4. 191. The complainants state that free collective bargaining should be encouraged by public authorities as a process to ensure that changes are made in a fair and equitable manner. The heavy-handed, arbitrary and unbalanced way in which the Government tried to use waterfront "reform" and "competitiveness" constitutes interference in collective bargaining and contributed substantially to undermining normal industrial relations and to the difficulties connected with resolving the dispute.
5. 192. The complainants state further that the alleged "monopoly" by the MUA of union membership on the waterfront is also irrelevant to the complaint of violations of freedom of association principles. The fact that the MUA has a very high level of membership amongst waterfront employees is not an indication of a denial of freedom of association; the Government provides no evidence of MUA members complaining of being forced to join the union, or of any person denied employment on the waterfront because of a refusal to join the MUA. The process by which the MUA gained coverage of most waterfront workers included amalgamations, agreements between unions and decisions of the Industrial Relations Commission, and was conducted in accordance with the law. The complainants point out that the current Workplace Relations Act continues to provide for union amalgamations and for the Industrial Relations Commission to determine union coverage, although with some amendments introduced in 1996. In spite of changes of coverage, union members who maintained allegiance to their current union, such as the electricians referred to by the Government, were able to retain their membership in the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU).
6. 193. In this context, despite the legislative amendments referred to by the Government to make it easier for employees to form and register unions and giving greater rights to employees to choose whether or not to belong to a union, the complainants are unaware of any attempt by any waterfront workers to establish an enterprise union or to seek coverage by an alternative union; they also know of no complaint having been made by a current, former or potential employee in relation to a breach of freedom of association provisions of the Workplace Relations Act, other than in connection with the dispute. The complainants assert that the actual basis of the Government's dissatisfaction with the MUA is revealed in its reference to MUA's bargaining power and the level of industrial action. However, it is not contrary to freedom of association principles for a union to be in a relatively strong bargaining position or to be prepared to take strike action. The dispute referred to by the Government in relation to members of the Transport Workers' Union doing work traditionally performed by MUA members is not related to freedom of association, but to the desire of those workers who have traditionally done this work to maintain their employment opportunities.
7. 194. With respect to the Government's reference to the subleasing of the berth at Webb Dock to PSC Operations, a company established by the National Farmers' Federation, in the view of the complainants, this was a step in the plan to which the Government was privy to replace MUA members with non-union members on individual contracts. Concerning the restructuring of the Patrick Companies whereby the waterfront employees were transferred to "labour hire" companies which did not hold any assets other than contracts to supply labour to another company owned by the Patrick Companies, the employees were not informed of this change in the identity of their employer. The complainants submit that the principal purpose of this corporate restructuring was to facilitate the wholesale dismissal of MUA members. In effect, through a change in work organization and management structures they sought to sever a long-established employment relationship, thus depriving workers of their employment and their union representation. When the labour hire contracts were terminated on 7 April 1998, the employees were informed that there was no more work for them, while the Patrick Companies entered into new contracts for the supply of labour with a company established by the National Farmers' Federation. The new employees were employed on individual contracts (Australian Workplace Agreements - "AWAs").
8. 195. The complainants question the Government's implied contention in its response that its introduction into Parliament of legislation to facilitate waterfront redundancies only hours after the Patrick Companies had acted to remove MUA members from the waterfront was a coincidence. The complainants state that the Minister for Workplace Relations and Small Business had been well briefed and was prepared the evening prior to the events.
9. 196. On the issue of alleged picket line violence, the complainants state that no such incident has been proven against an MUA official or member, and no convictions have been obtained in relation to such activity. In one case, where an MUA member threw a rock at a truck, the member was disciplined by the union. The picket lines were operated in accordance with well-established principles of non-violent protest, with training provided to participants, and a high level of discipline prevailing. A cooperative relationship and constant dialogue was maintained with the police in relation to the management of the pickets. The injunctions to which the Government refers in its response were primarily directed towards the peaceful activities of union members and the large number of community supporters who joined them, and in any event were granted on the basis of allegations made by applicants without any investigation or testing of the truth of the allegations.
10. 197. Concerning the role of the Australian Consumer and Competition Commission (ACCC) in the dispute, the complainants state that this highlights the restrictive nature of sections 45D and 45DB of the Trade Practices Act. The complainants recall in this context the comments of the Committee of Experts on the Application of Conventions and Recommendations in relation to Australia's observance of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).
11. 198. With respect to the Government's denial that the briefing paper of 10 March 1997, a copy of which was earlier submitted by the complainants, represented government policy or proposed action, the complainants point to a later briefing paper dated 14 April 1997 from the Assistant Secretary, Industry Strategy Team, Department of Industrial Relations, addressed to the Minister for Industrial Relations. The document is a summary of discussions between officers of the Department of Industrial Relations, the Patrick Companies, and P&O Ports (another stevedoring company). The document states that "Patricks thinks that an externally induced disruption sufficient to enable it to terminate its entire workforce is the least risky option ... It can be anticipated that both companies will be seeking 'threshold' assistance from the Government, both as an indicator of government resolution and by way of specific provisions ... Patricks' view (expressed by Mr. Young in the 10 April meeting) that it would be prepared to wear a long stoppage (six to eight weeks) if the other stevedores kept operating (i.e. had not ventured to achieve change) is notable ... Patricks also stated firmly that any 'window of opportunity' would not extend beyond this year ..." A letter from the Prime Minister, John Howard, dated 21 April 1997 to the Minister for Transport and Regional Development, was also submitted by the complainants. In the letter, the Prime Minister states: "I refer to our recent discussions on maritime reform. I support the interventionist strategy you have outlined. It would be appreciated if you and the Minister for Industrial Relations could proceed expeditiously to establish a contingency planning group."
12. 199. Furthermore, the complainants recall the memorandum to the Minister of Transport from his adviser, dated 21 September 1997, a copy of which was forwarded earlier, noting that the Patrick Companies could advance "training times" and "a late January implementation would be possible". The complainants submit that this memorandum points to the Government's knowledge of the Dubai project to train replacement labour, whether or not the precise location was known. This is confirmed, according to the complainants, by an agreement between the Patrick Companies and the Container Terminal Management Services dated 23 October 1997 for the selection, recruitment and training of specialists in container terminal operations. A copy of the confirmation of contract details for Dubai trainees was also forwarded by the complainants, which states: "You will have signed an 'Australian Workplace Agreement' offering you a three-year employment contract." The complainants state that this document makes it clear that it was a condition of employment for both the individuals selected for the Dubai training exercise and for those later employed to replace the MUA members that they sign individual AWAs.

D. The Government's further reply

1. 200. In its communication of 6 October 1999, the Government first provides new information then responds to the further information of the complainants. It reiterates that since taking office in 1996, it has pursued a policy of seeking to improve the competitiveness, productivity and general economic efficiency of key industries, including the stevedoring industry, and its proposed framework for reform of the waterfront was preceded by widespread consultations. Under the statutory arrangements of July 1998, provision was made for a stevedoring levy to be imposed, allowing, among other things, for the repayment of a loan used to fund redundancies lawfully taking place as part of the restructuring of the stevedoring industry.
2. 201. The Government states that the most recent figures issued by the Bureau of Transport Economics, a copy of which is attached to the response, demonstrate sustained improvements in waterfront reliability and productivity. The document, dated 20 September 1999, states that:
   • Overall, national stevedoring productivity, as measured by the five-port average, improved further in the June quarter 1999 ... The level of stevedoring productivity achieved in the June quarter 1999 comes mainly as a consequence of improvements in productivity at the Patrick terminals, where new enterprise agreements were introduced in September 1998, and partly from the generally sustained levels of performance achieved by P&O Ports and Sea-Land during their negotiations with the MUA.
   • While the Government welcomes these improvements, it considers that the full economic benefits of restructuring and competition in the industry have yet to be achieved. Accordingly, the Government will continue to support, through its general economic policies and monitoring of progress in the stevedoring industry, the achievement of a safer and better performing waterfront.
3. 202. The Government recalls that the Stevedoring Industry (Imposition) Act, 1998, and the Stevedoring Industry (Collection) Act, 1998, allow a levy of up to A$250 million to be collected and applied for specific purposes connected with the improvement of the stevedoring industry's economic efficiency. On 2 June 1999, the Minister for Transport and Regional Services introduced the Stevedoring Levy (Collection) Amendment Bill, 1999. This Bill, if passed by Parliament, will increase the amount of the levy that may be imposed to A$350 million. The Bill aims to ensure that there are sufficient funds to meet the costs of redundancies and non-redundancy-related reforms (e.g. electronic commerce, new wharf facilities, occupational health and safety training programmes and other training). A copy of the Bill is supplied with the response.
4. 203. On the issue of further industry restructuring, the Government states that there have been 14 collectively bargained agreements between P&O Ports (the other major stevedoring company in Australia) and the MUA, as well as one arbitrated award (made by the Australian Industrial Relations Commission in default of agreement). As a result of these agreements and the award, changes have been made to working arrangements, including pay and conditions. Greater productivity and efficiency will be achieved. It is anticipated that there may be approximately 400 redundancies out of a pre-existing workforce of 1,470 P&O Ports employees. Up to 11 August 1999, another 217 restructuring-related redundancies supported by funding provided by the industry-based scheme occurred in eight other stevedoring companies.
5. 204. The Government submits that this further restructuring will be of national economic benefit and is consistent with the Government's objectives. The Government points out that it reinforces its earlier rebuttal of the unfounded complaint that the Government was engaged in actions targeted against the MUA in relation to the Patrick Companies. According to the Government, the events from 1996 to the present demonstrate that it has consistently sought the improvement of waterfront performance, including its safety record, and has established a statutory means for assisting employers with the considerable costs of funding redundancies and non-redundancy related reforms. The framework applied in respect of all parties engaged in the stevedoring industry; it was not designed to operate for or against any individual party.
6. 205. Concerning the continuing litigation, the Government states that in the administration of justice, the Government must ensure that these proceedings are not prejudiced in any way. The Government explains that the legal proceedings comprise two separate cases, both in the Federal Court. In both cases, the applicants amended their statements of claim in response to defects that had been pointed out. The amended statements of claim were found to be defective as a matter of law, and thus struck out. Further statements of claim have been filed or are being prepared. The Government states that it has not yet had to enter defences owing to the various defects in the claims; however, if the claims were capable of being reformulated in a manner acceptable to the Court, it would enter defences indicating that no liability exists.
7. 206. The Government then provides its observations on the further information provided by the complainants. Firstly, the Government states that it does not claim that the settlement of the litigation concerning the Patrick Companies means that any alleged contravention of freedom of association principles either occurred or did not occur before the settlement was reached. In the view of the Government, while the complainants make a number of claims about facts and the intentions of various parties, none which establishes a breach has been proved. The Government also denies that its conduct or policies evince either an intention to commit, or the commission of, any such breach. Regarding the complainants' indication that the Government has ignored its responsibility to ensure that trade union rights are not violated, the Government recalls the substantial amendments made to the federal industrial relations legislation (the Workplace Relations Act, 1996) which strengthen the protection of the rights of employees, trade unions, employers and employers' associations. The Government reiterates that it was these very laws that the MUA ought to use to seek remedies for the alleged discrimination against it and its members in 1998.
8. 207. With respect to the proceedings pursuant to the Freedom of Information Act for access to various documents held by the Government, the Government states that it cannot pre-empt the proceedings by commenting on the relevant material.
9. 208. Concerning the complainants' further information dealing with the Government's waterfront policy, the Government contends that no new information is provided or it represents a selective, incomplete presentation of the Government's earlier response. The Government notes that the complainants do not contest that the Government's action in relation to the stevedoring industry should be seen as part of its overall policy aim of improving the economic efficiency of the waterfront, nor the facts presented by the Government concerning its attempts to achieve that policy goal including the lengthy period of consultations with relevant parties.
10. 209. The Government agrees with the complainants' statement that changes to work practices and employment arrangements should occur in a manner consistent with Australian and international law, and expresses its regret that the events on the waterfront in 1998 led to violence on the picket lines, involving harm to persons and property. The Government also notes that there is a reference in the complainants' information to the conciliation and arbitration processes available. In this context, the Government points to the findings of the Australian Industrial Relations Commission (AIRC) in December 1997 that there had been an unjustifiable refusal by MUA members to abide by an agreement to introduce new work practices. Attention is also drawn to the order made by the AIRC in February 1998 to stop industrial action by MUA members against the Patrick Companies. The Government submits that these incidents suggest that the complainants' observations about the resolution of the industrial issues through the AIRC fail to take into account the unwillingness of the MUA or its members to accept the norms of the conciliation and arbitration system.
11. 210. With respect to the allegation that employees at all Patrick Companies ports were discriminated against regardless of the productivity levels at their workplaces, the Government states that the interview with the Prime Minister referred to by the complainants was very brief and general in nature. No reference was made to the complicated factual situation and, in any event, there were no forced dismissals or redundancies.
12. 211. The Government agrees with the complainants that change is, and indeed should always be, possible without victimization of union members. The Government adds that this applies equally to non-union members and employers. The Government states that it supports voluntary collective bargaining, and in this context draws attention to the protection given under the Workplace Relations Act to such collective bargaining. The Government submits, however, that the protection of voluntary collective bargaining does not imply that provision should not also be made for parties who do not wish to participate in such voluntary collective bargaining. The Government states that the complainants do not substantiate their assertion that the Government tried to use waterfront reform and competitiveness in a heavy handed, arbitrary and unbalanced way, and it denies that it has pursued waterfront reform in such way.
13. 212. With respect to the high concentration of MUA membership, the Government contends that the employees concerned were denied choice of union representation. Before the 1996 amendments, there was a legal framework facilitating the exclusion of other unions from a workplace, regardless of whether there were demarcation difficulties. The Government states that MUA emerged against the background of federal union registration laws which were found to be incompatible with freedom of association principles, and thus later repealed. The Government stresses that it has not challenged or sought to restrict in any way the right of waterfront workers to join the MUA; its concern is that for many years, employees were effectively denied the free choice to form or join (or not to join) unions of their own choosing. The Government states that the complainants' reference to a dispute in relation to members of another union doing work traditionally performed by MUA members concerns an objection to members of another union lawfully performing waterfront work.
14. 213. Regarding the complainants' comment that the Government objected to the MUA's bargaining power and level of industrial action, the Government acknowledges that it has expressed concern at the poor workplace relations on the waterfront and the MUA's resistance to measures for improving productivity. The Government notes that it has provided examples of the poor industrial relations record on the waterfront before 1998 and a case of the unwillingness of MUA members to abide by an agreement for productivity improvements. The Government also points to the fact that the underwriting of structural change through the funding provided pursuant to the Stevedoring Industry (Collection) Act is dependent on employers agreeing to achieve a number of goals, including improved productivity, reliability, training and occupational health and safety.
15. 214. On the issue of picket line violence, the Government states that the complainants do not deny that violence was threatened or occurred, and in fact admit that an MUA member threw a rock at a truck. In fact, according to the Government, the violence was far more frequent and systematic, as referred to in its previous response, and the courts in the relevant states were seriously concerned about the prospect of continued violence, granting interlocutory injunctions to prevent its occurrence and to preserve public order. The Government considers that it would be extraordinary if the courts were to be denied the capacity to intervene in such cases before a hearing occurred for the consideration of final orders.
16. 215. Concerning the Trade Practices Act, the Government notes that the complainants make reference to certain views expressed by the Committee of Experts on the Application of Conventions and Recommendations with which the Government does not agree. The Government notes that the complainants do not refer to provisions of the Trade Practices Act that exempt certain conduct from the boycott provisions where it involves unions and employees over certain employment matters (section 45DD) or other provisions that regulate the application of the boycott laws in industrial cases (e.g. sections 80AB and 87AA).
17. 216. The Government goes on to refer to the documents put forward by the complainants as providing additional evidence of the Government's role in the dispute of the Patrick Companies. The Government notes that such documents are potentially discoverable in the pending litigation; accordingly, the Government is constrained by sub judice principles in commenting on such material. However, the Government draws attention to its earlier comments on the alleged government support for the Patrick Companies' strategy. The Government states that the document dated 14 April 1997 appears to record views expressed by Patrick Companies and P&O representatives at a meeting in 1997, with no suggestion of government agreement or views. According to the Government, the document indicates that the Patrick Companies envisaged change occurring at a time and in circumstances quite different from those that occurred in 1998. It is also noted that according to the document, the Patrick Companies sought legislative change, and none occurred. With respect to the Prime Minister's letter, the Government states that this precedes the Cabinet document of 7 July 1997 referred to in the Government's earlier response. According to the Government, it is simply a letter signalling that the Government was prepared to develop the type of "activist" approach as explained to the Australian Parliament on 4 June 1998 and mentioned in the earlier response. Regarding the complainants' further information with respect to the Dubai training, the Government refers to its earlier response.
18. 217. The Government states that it does not know whether or not the complainants' claim that Australian Workplace Agreements (AWAs) were a condition of employment for various employees is correct. However, on the relationship under the Workplace Relations Act of certified agreements and AWAs, the Government states that the Committee of Experts' comments in this regard are erroneous, and refers to its statement before the Standards Committee of the International Labour Conference in 1998.

E. The Committee's conclusions

1. 218. The Committee notes that the allegations of violations of freedom of association in this case arise out of a complex series of facts concerning the actions of the Patrick Companies and the Government in relation to the employment of MUA members in stevedoring operations at various Australian ports. A number of issues arise in the context of the complaint:
   • (i) whether MUA members were discriminated against on the basis of trade union membership or activities;
   • (ii) whether the right to strike and picket was violated;
   • (iii) whether there was interference with legitimate boycott/secondary action;
   • (iv) whether the rights associated with MUA's affiliation with an international trade union organization were violated; and
   • (v) whether the introduction of the system of Australian Workplace Agreements (AWAs) contravenes the obligation to promote voluntary collective bargaining.
     • The Committee notes further that the Government's reply raises the legitimacy of certain union security arrangements, an issue that is then pursued in the additional information supplied by the complainants.
     • Union security arrangements
   • 219. The Committee notes that in the context of explaining its role in the actions taken by the Patrick Companies, the Government clearly indicates its opposition to MUA's "virtual monopoly" with respect to labour on the waterfront. The Government points in particular to the closed shop arrangements from which MUA was able to benefit in the past and the exclusive representation rights that MUA achieved through inter-union agreements, union amalgamations, and successful applications to the Australian Industrial Relations Commission for orders for exclusive coverage of the employees concerned. The Government notes, however, that the legislation that permitted such a situation to arise has since been amended, making it easier for employees to form and register unions and giving greater rights to employees to choose whether or not to belong to a union. According to the Government, prior to the 1996 amendments, there was a legal framework facilitating the exclusion of other unions from the workplace; the Government expresses concern that before these amendments, employees were effectively denied the right to form or join (or not to join) unions of their own choosing. The Committee notes that the complainants point out that the electricians on the waterfront in fact belonged to (and continue to belong to) another union, namely the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU). They also state that despite the legislative changes of 1996, they are unaware of any attempt by any waterfront workers to establish an enterprise union or to seek coverage by an alternative union, a point which is not contested by the Government.
2. 220. The Committee recalls that a trade union monopoly must be distinguished both from union security clauses and practices and from situations in which the workers voluntarily form a single organization (see Digest of decisions and principles of the Freedom of Association Committee, 4th (revised) edition, 1996, para. 292). A further distinction needs to be made between union security clauses allowed by law and those imposed by law, only the latter of which appear to result in a trade union monopoly system contrary to the principles of freedom of association (see Digest, op. cit., para. 321). According to the Government, the exclusive representation rights of MUA resulted from inter-union agreements, union amalgamations and applications to the Australian Industrial Relations Commission. None of these factors leading to trade union unity in a particular sector appear to the Committee to be imposing a trade union monopoly system by the State through legislation, which would be contrary to freedom of association principles (see Digest, op. cit., para. 289). The Committee notes further that the Government recognizes itself that the legislation has already been amended for some years with respect to the closed shop. Therefore, the Committee recalls that trade union unity voluntarily achieved should not be prohibited and should be respected by the public authorities.
   • Anti-union discrimination
3. 221. The Committee notes that the allegation of anti-union discrimination has two main components. First, according to the complainants, the Patrick Companies restructured the group of companies with a view to terminating the employment of approximately 1,400 MUA workers, and did so with anti-union animus. Secondly, the role of the Government in this process is raised by the complainant.
4. 222. The complainants and the Government agree that the Patrick Companies were substantially restructured in September 1997, resulting in Patrick's operational workforce being employed by labour hire companies. The labour hire contracts to supply labour to another Patrick company were the only significant assets of these companies. According to the complainants, the employees were not informed of this change in the identity of their employer. There is also agreement between the complainants and the Government that the labour hire companies became insolvent, thus ceasing the operation of the companies and the work of the employees concerned. The Committee notes further that MUA was successful in obtaining interim court orders compelling the Patrick Companies to treat the labour hire contracts as binding and to obtain labour from the labour hire companies, thus preventing the dismissal of the workers.
5. 223. The Committee notes that in a judgement of 21 April 1998, the Federal Court judge found that MUA demonstrated an arguable case that the Patrick Companies had acted in breach of section 298K of the Workplace Relations Act, 1996 which provides as follows: "An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following: (a) dismiss an employee; (b) injure an employee in his or her employment; (c) alter the position of an employee to the employee's prejudice." Pursuant to section 298L of the Act, a "prohibited reason" includes conduct carried out "because the employee, independent contractor or other person concerned: (a) is, has been, proposes to become or has at any time proposed to become an officer, delegate or member of an industrial association ..." The judge stated that "By dividing the functions of employing workers and owning the business between two companies, the Patrick group put in place a structure which made it easier to dismiss the whole workforce. It is arguable, on the evidence, that this was done because the employees were members of the union." The judge also found that there was an arguable case that these acts were in breach of the contracts of employment and that the Patrick owners and others "agreed on these unlawful acts as part of an overall plan to replace the workforce with non-union labour. This means that there is an arguable case that the Patrick owners and employers have engaged in an unlawful conspiracy". With specific reference to the corporate restructuring and entering into the labour hire contracts, the judge stated that this gave the company "the power to bring to an end the only significant asset of the employers, to thereby render each employer insolvent and, in consequence, to allow the employers to claim that the workforce was redundant. This could all occur while allowing (the Patrick Companies) to continue the stevedoring business. Because clause 13.1(b) (of the labour hire contracts) could be triggered on the occurrence of a minor work stoppage by some employees and because such an event was, in the practical world, likely to occur at some time, the power to bring about the circumstances in which the workforce of the employers could be dismissed was readily available". While none of the findings quoted were questioned on appeal, the High Court specified that the orders concerning the continuation of the labour hire contracts and the effect on the employment of the employees were "without prejudice to the power of the Administrators". The Committee also notes that, according to the complainants, although as a result of the injunction the workers were not technically dismissed, they were given no work and were not being paid.
6. 224. As to the role of the Government in the events leading up to the attempt by the Patrick Companies to cancel the labour hire contracts thus making the MUA members redundant, the Committee notes that the Government clearly indicates that it also wanted to see the end of MUA's control over labour on the waterfront as an important element in a general restructuring of the industry. The Government justifies this position by the importance of the ports in a country such as Australia, the fact that industrial disputes on the waterfront could lead to an essential services crisis, and the need to improve productivity. The Committee notes that according to recent statistics provided by the Government, there have been sustained improvements in waterfront reliability and productivity since June 1999, which is partly linked to the enterprise agreements introduced in September 1998 as part of the settlement of the dispute between the MUA and the Patrick Companies.
7. 225. The Committee notes that the employment of approximately 1,400 MUA members was terminated as a result of the cancellation of the labour hire contracts, a situation that according to the Federal Court judge was made virtually inevitable by the corporate restructuring of the Patrick Companies and the terms of the labour hire contracts. Although an interim injunction was granted to protect the employment of these workers, the Committee notes that despite the court order, up to the date of the submission of the complaint, the workers had not been given any work and had not been paid, though many are now back to work pursuant to the settlement of the dispute. Although the courts granted interim rather than final orders, the Committee is of the view that there was evidence, referred to in some detail by the courts, that a motivation for the restructuring and the labour hire contracts was to ensure that the union workforce on the waterfront could be replaced by a non-union one. The Committee also notes with respect to the Patrick Companies' motivation that the Government acknowledges that by December 1997 it had become aware that the Patrick Companies had been involved in training replacement stevedore labour in Dubai. This was before the industrial action began which according to the Government triggered the termination of the labour hire contracts, supporting the view that the activities of the Patrick Companies were aimed at replacing the unionized workforce with non-union labour.
8. 226. In this regard, the Committee should recall the importance of the principle that no person shall be prejudiced in his or her employment by reason of trade union membership or legitimate trade union activities (see Digest, op. cit., para. 690). The Committee is of the view that a corporate restructuring should not directly or indirectly threaten unionized workers and their organizations. The Committee notes, however, that court proceedings related to this issue have been dismissed by consent as part of the settlement of the dispute and that the workers have either returned to work or been paid their full redundancy entitlement.
9. 227. On the issue of the Dubai training exercise, the Committee notes the Government's statement that all the serving Defence Force personnel involved were either on long-service leave or recreation leave, and that any serving personnel who had failed to obtain the necessary approval to engage in outside employment would be disciplined upon their return. The Committee requests the Government to keep it informed of any action taken in this regard. The Committee also requests the Government to take measures preventing in future the training of persons to replace workers taking legitimate strike action.
   • Strike action and picketing
10. 228. The Committee notes that the allegation that the Government and the Patrick Companies engaged in action aimed at avoiding strikes on the waterfront is closely linked to that of anti-union discrimination. The complainants assert that one of the motives for the manipulation of the corporate structures of the Patrick Companies was to avoid strike action. While the complainants state that a minority of the workers terminated were involved in lawful industrial action, and none were involved in illegal industrial action, the Government submits that whether or not the workers concerned were involved in industrial action is irrelevant. The Committee notes the concern clearly expressed by the Government as to the importance of avoiding industrial action on the waterfront, stating that "industrial disputation on the waterfront can quickly lead to an essential services crisis". The Government was of the view that measures to reform the waterfront would be resisted by MUA, and considered that such resistance would take the form of widespread and protracted industrial action designed to bring the waterfront to a standstill which "would create a national crisis. It would seriously harm the well-being of the Australian population and inflict significant damage on the Australian economy". Although the Government asserts that it needed to be prepared to meet such an eventuality, no such crisis arose, therefore, it did not need to give further consideration to measures to be taken.
11. 229. While recognizing the importance of the ports to a country such as Australia and the key role of the stevedoring industry, the Committee does not consider that such activities constitute "essential services" in the strict sense of the term. In support of this characterization, the Government relies primarily on the presumed impact on the economy of industrial action at the ports. The Committee notes that this approach is reflected in section 170MW(3) of the Workplace Relations Act, pursuant to which industrial action is not protected (thus potentially giving rise to an injunction, civil liabilities and dismissal of the striking workers) if it threatens to cause significant damage to the Australian economy. The Committee notes further that registration of an organization may be cancelled pursuant to section 294 of the Act where it or its members engage in industrial action interfering with trade or commerce. The Committee recalls that the right to strike can be restricted or prohibited in the case of essential services as strictly defined, namely services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (see Digest, op. cit., para. 542). While the Committee has also accepted that a non-essential service may become essential if a strike lasts beyond a certain time or extends beyond a certain scope, thus endangering the life, personal safety or health of the whole or part of the population (see Digest, op. cit., para. 541), economic damage is not of itself relevant; and in any event, the Government makes it clear that the protracted industrial action it feared did not take place.
12. 230. The Committee notes with concern that by linking restrictions on strike action to interference with trade and commerce, a broad range of legitimate strike action could be impeded. While the economic impact of industrial action and its effect on trade and commerce may be regrettable, such consequences in and of themselves do not render a service "essential", and thus the right to strike should be maintained. The Committee, therefore, requests the Government to amend the legislation in this respect. It draws this aspect of the case to the attention of the Committee of Experts.
13. 231. As regards more particularly port activities, the Committee is of the view that although they are not essential services in the context of Australia, they could be considered as an important public service. The Government may, therefore, want to consider establishing a minimum service in the case of a strike (see Digest, op. cit., para. 564 concerning the National Ports Enterprise). The Committee recalls in this regard that the determination of minimum services and the minimum number of workers providing them should involve not only the public authorities, but also the relevant employers' and workers' organizations (see Digest, op. cit., para. 560).
14. 232. With respect to the allegation that orders have been granted prohibiting peaceful picketing, potentially exposing the union and its members to contempt proceedings, imprisonment, fines and civil damages for non-compliance, the Committee takes note of the relevant judgements and orders forwarded by the complainants and the Government. The Committee notes that the dispute was particularly heated and that the majority of the orders were aimed at prohibiting injury or damage. The Committee recalls that it has in the past considered legitimate a legal provision that prohibits pickets from disturbing public order and threatening workers who continued work (see Digest, op. cit., para. 585). It has also stated that while taking part in picketing and firmly but peacefully inciting other workers to keep away from their workplace cannot be considered unlawful, the case is different, however, when picketing is accompanied by violence or coercion of non-strikers in an attempt to interfere with their freedom to work (see Digest, op. cit., para. 586).
    • Boycotts/secondary action and international affiliation
15. 233. The Committee notes that the issue of whether there has been interference with legitimate boycott activities is closely linked to the allegation that there has been interference with the rights associated with MUA's affiliation with ITF. This aspect of the case arises out of the actions taken by the Australian Competition and Consumer Commission (ACCC), an independent statutory authority responsible for the enforcement of the Trade Practices Act, 1974. The complainants state that the Australian unions and their officials have been threatened with legal action by the ACCC (i) for engaging in sympathy or boycott action contrary to the Trade Practices Act and (ii) with respect to their involvement in an international organization, namely ITF. The Government expresses the view that the actions of the ACCC with respect to an international boycott could not properly be regarded as a threat or in any way improper, as the ACCC, through the Government Solicitor, was informing MUA of its concerns about possible breaches of the Trade Practices Act and that such conduct could result in prosecution under the Act.
16. 234. The Committee notes that the issue in this context is not whether the ACCC acted improperly. The ACCC is an independent statutory authority acting pursuant to delegated authority. The issue is rather whether the Trade Practices Act, as interpreted by the ACCC and the courts, contains provisions that are not in conformity with freedom of association principles. The Committee takes note of the contents of the letter from the Australian Government Solicitor to MUA's National Secretary, dated 17 April 1998: The Commission is aware of evidence which suggests that you have engaged in further conduct which constitutes a contravention of the Trade Practices Act ... The evidence indicates that by action in concert of the MUA and the ITF, and others ... industrial action at various ports around the world against ship and shipowners which use stevedoring services in Australia from stevedores who use non-union labour has been threatened and organized. The evidence indicates that the threat has been widely publicized by these persons and bodies and may shortly be implemented ... The Commission on its current evidence believes that there has been a prima facie breach of s. 45DB of the Act. The Commission also believes that to implement the threatened actions will constitute a further breach or breaches of s. 45DB ... The Commission is currently considering what course of action it should take, and in particular whether to commence proceedings ... The Commission believes the matter might be able to be resolved by enforceable undertakings by the MUA, you and others in the terms of the schedule hereto.
    • The Committee notes that the undertaking attached as a schedule to the letter is set out in broad terms:
17. (1) Each of the MUA, John Coombs and Trevor Charles, will not, by themselves or their respective servants or agents or otherwise howsoever aid, abet, counsel, procure or conspire to cause, or otherwise be knowingly concerned in causing, the ITF and/or any of its affiliates to threaten and/or implement any international boycott by members and/or affiliates of the ITF of:
    • (a) any ships which use stevedoring operations in Australia conducted by non-union labour; and/or
    • (b) any ships owned by a company which allows a ship owned by that company to use stevedoring operations in Australia conducted by non-union labour.
18. (2) The MUA will request the ITF not to threaten and/or implement any boycott of the kind set out in Undertaking 1.
19. (3) Each of the MUA, John Coombs and Trevor Charles, will not, by themselves or their respective servants or agents or otherwise howsoever provide to the ITF or any of its affiliates any information:
    • (a) for the purposes of identifying; or
    • (b) that enables the ITF or any of its affiliates to identify any ship which uses stevedoring operations in Australia conducted by non-union labour.
20. (4) The MUA will take reasonable steps to provide a copy of these Undertakings to all shipowners engaged in transport services between Australian ports and ports outside Australia.
    • An interim injunction was then successfully sought by the ACCC. The order of Mr. Justice Beaumont dated 27 May 1998 is set out in similar, though somewhat narrower terms, to the undertaking requested by the Government Solicitor.
21. 235. The Committee notes that the provision relied upon by the ACCC was section 45DB of the Trade Practices Act, 1974, as amended, which prohibits a person from engaging in conduct in concert with another person "for the purpose, and having or likely to have the effect, of preventing or substantially hindering a third person (who is not an employer of the first person) from engaging in trade or commerce involving the movement of goods between Australia and places outside Australia". The complainants also draw attention to sections 45D and 45E rendering unlawful a wide range of boycott activity directed against persons who are not the employers of the boycotters. The Committee recalls that a general prohibition on sympathy strikes could lead to abuse and workers should be able to take such action, provided the initial strike they are supporting is lawful (see Digest, op. cit., para. 486). In this regard, the Committee notes and concurs with the observation of the Committee of Experts on the Application of Conventions and Recommendations made with reference to the provisions of the Trade Practices Act: "The Committee notes with regret that the recent amendments to the Act maintain the boycott prohibitions and render unlawful a wide range of sympathy action" (see Report of the Committee of Experts, Report III, Part 1A, 1999, p. 206). The Committee requests the Government to take the necessary measures, including amending the Trade Practices Act, to ensure that workers are able to take sympathy action provided the initial strike they are supporting is lawful. The Committee draws this aspect of the case to the attention of the Committee of Experts.
22. 236. Concerning more specifically the impact of the boycott provisions, as interpreted by the ACCC and the court, on the rights associated with MUA's affiliation with ITF, the Committee notes with concern the breadth of the restrictions set out in the undertaking and the court order referred to above, including limitations on MUA's right to communicate with ITF and a requirement to withdraw all calls for solidarity action. The Committee recalls that the right to affiliate with international organizations of workers implies the right, for the representatives of national trade unions, to maintain contact with the international trade union organizations with which they are affiliated, to participate in the activities of these organizations and to benefit from the services and advantages which their membership offers (see Digest, op. cit., para. 635). The granting of advantages resulting from the international affiliation must, however, not conflict with the law, it being understood that the law should not be such as to render any such affiliation meaningless (see Digest, op. cit., para. 631). The Committee, therefore, requests the Government to take the necessary measures to ensure that in future trade unions are entitled to maintain contact with international trade union organizations, to participate in their legitimate activities and to benefit from the services and advantages of such membership.
    • Promotion of collective bargaining
23. 237. Concerning the allegation that collective bargaining rights have been violated, the Committee notes that with respect generally to the provisions of the Workplace Relations Act concerning AWAs, the complainants express the view that the Act does not promote collective bargaining. The Government contends, however, that the system of AWAs is not inconsistent with principles of freedom of association and collective bargaining but rather provides a new alternative for those who do not wish to bargain collectively. With respect to the specific situation of the workers concerned in this case, the Committee notes that the information provided by the complainants and the Government is in direct contradiction. The complainants submit that some of the terminated MUA workers and all the non-union replacement workers have been offered re-employment or employment on the condition that they work under individual contracts (AWAs) rather than collective instruments. According to the Government, however, the terms and conditions of employment of the Patrick stevedoring workforce are governed by two collective agreements which were certified on 3 September 1998.
24. 238. On the issue of the compatibility of the provisions of the Workplace Relations Act, 1996, concerning AWAs with collective bargaining rights, the Committee notes that the Committee of Experts in its 1997 observation concerning Australia's obligations under Convention No. 98 raised serious concerns regarding the relevant provisions (particularly Part VID) (see Report of the Committee of Experts, Report III, Part 1A, 1998, p. 223). It reiterated its concerns in 1999, stating in particular that "Having closely considered the Government's explanations and observations, the Committee (of Experts) remains of the view that the Act gives primacy to individual over collective relations through the AWA procedures." The Committee therefore requested the Government to take steps to review and amend the Act to ensure that collective bargaining will not only be allowed, but encouraged at the level determined by the bargaining parties. (See Report of the Committee of Experts, Report III, Part IA, 2000, p. 223.)
25. 239. The Committee, therefore, requests the Government to take the necessary measures, including amending the legislation, to ensure that AWAs do not undermine the legitimate right to bargain collectively or to give primacy to individual over collective relations. The Committee draws this aspect of the case to the attention of the Committee of Experts.
26. 240. With respect to the specific situation that arose with respect to the workers of the Patrick Companies, the Committee considers that corporate reorganization should not disregard the right to collective bargaining of the workers concerned through their unions. The Committee requests the Government to ensure that in future, in the case of such corporate reorganizations there should be dialogue between the parties to the collective agreement, and that the obligations under Convention No. 98 are respected.