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freedom of association refers to the freedom to join a union or association without fear of outside interference. Australia does not guarantee freedom of association in her Constitution. As a result, Australia has ratified several international covenants on freedom of expression, and used international laws as a basis for the Industrial Relations Reform Act 1993.
The Workplace Relations Act of 1996, which specifically protected the freedom of association, and provided specific penalties for breaching the Act, superseded the 1993 Act. Recently, the war on terrorism has presented an unexpected threat to Australia's freedom of association laws. This renewed the argument that the freedom of association should be guaranteed, by law, within the body of Australia's constitution.
Freedom of association has taken an important place in international labor law and social justice. The International Labour Organization (ILO) has long had conventions that deal specifically with freedom of association, the importance of collective bargaining, and the right to organize.
Specifically, two conventions have long been the basis for international law governing the freedom of association: the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98). The 1948 convention establishes "the right of all workers and employers to form and join organizations of their own choosing without prior authorization, and lays down a series of guarantees for the free functioning of organizations without interference by the public authorities." The 1949 convention "provides for protection against anti-union discrimination, for protection of workers' and employers' organizations against acts of interference by each other, and for measures to promote and encourage collective bargaining."
The Australian Constitution does not expressly guarantee freedom of association. Thus, the matter of determining if freedom of association is implied in the Constitution has been left to Australia's high courts. In the last ten years, the High Court has determined that the Australian Constitution has implied freedom of communication in both the political sphere and public affairs.
The High Court's determination suggests that these implied freedoms might be extended to cover freedom of association. Certainly, the freedom of association is a right that flows logically from freedom of communication. However, at the present time, the Australian High Court has not directly determined that freedom of association is implied in the Australian Constitution.
Given that the freedom of association is neither directly governed by Australia's Constitution, nor has been unequivocally recognized by the country's High Court, the legal matter of freedom of association has been dealt with in other ways. Statutory provisions for the freedom of association have existed previously, though mostly at the state, rather than at a national level.
At a national level, the Commonwealth Industrial Relations Reform Act of 1993 brought Australian labor law closer in line with general international labor standards. For example, the Commonwealth Industrial Relations Reform Act 1993 brought a degree of protection to the right to strike. The right to strike is generally regarded as an integral component of the right to the freedom of association.
The national application of international law has been used with some success to protect freedom of association in Australia. Australia has ratified numerous international covenants and International Labour Organization (ILO) conventions on the freedom of association. International covenants include the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights, and ILO Convention 87 (Freedom of Association and Protection of the Right to Organise).
The ICCPR is one of the most powerful international agreements on human rights. It guarantees freedom of association, and the rights to form or join trade unions (Australasian Legal Information Institute). Australia has ratified both the Right of Association (Agriculture) (ILO Convention No. 11), and the Freedom of Association and Protection of the Right to Organise (ILO Convention No. 87).
The external affairs clause of the constitution has been used to circumvent many of the restrictions in the traditional use of labor power in the Australian Constitution. The Industrial Relations Reform Act 1993 used this strategy, and drew on North American, European and international laws as a basis.
Importantly, The Industrial Relations Reform Act 1993 contained much-needed and important reforms in the area of enterprise bargaining. Prior to the Act, most strikes were considered unlawful in both industrial legislation and common law. The Act gave trade unions a limited right to strike "when negotiating an enterprise agreement for a single business or place of work."
In 1996, Australia adopted the Workplace Relations Act. The Workplace Relations Act granted all workers the freedom of association. As such, workers have the choice to belong to a union or employer association. The act is designed to protect employers, employees and independent contractors from discrimination as the result of their refusal to join a union or employer association.
The Act prevents employers from threatening to dismiss, refusing employment, or offering less favourable conditions to employees or independent contractors for any of the following conditions: "are, or are not, a member of a union; or propose, or do not propose, to become a member of a union; or are, or have been, or propose to become, an officer or delegate of a union; or have participated in lawful union activities; or if they are an independent contractor, have not paid a fee to a union, or have employees who are not, or do not propose to become, members of a union.
The Act gives employees the right to join a union, as long as the employee meets the union's membership rules, and pay membership fees. The Act also gives employees the right to resign from any union or employee association, upon a minimum of two weeks of written notice to the union. Employees cannot resign if they have outstanding dues to the union or employee association.
Further, the Act also prevents unions from engaging in several actions that limit the freedom of association. Specifically, unions may not force independent contractors to join a union, or attempt to influence employers to act against an independent contractor or employee because they are not part of a union. Under the Act, a union cannot force an employer to employ only union members.
The Workplace Relations Act of 1996 also provided for the establishment of the Office of the Employment Advocate. Not only does the Office of the Employment Advocate provide advice and help to employees, but it will also investigate breaches of the Act, and violations of the rights of employees. The Office of the Employment Advocate is empowered to take a breach of the act to Federal court, provide free legal representation to individuals if this assistance aids in compliance to the Freedom of Association provisions of the Act, and gives individuals the right to apply to the Federal Court.
Once a complaint reaches the Federal Court, the Workplace Relations Act of 1996 provides several repercussions for breaching the Act. The Federal Court can: impose penalties on employers or unions; give orders to stop unlawful conduct; award financial compensation; require an employee or independent contractor to be reinstated.
Penalties for Freedom of Association breaches can be severe. For corporate bodies like unions or employers, a fee of $10,000 may be assessed for each breach. For individuals like unions representatives, a fee of $2,000 may be assessed for each breach. Damages are unlimited, but the loss must be proven in Federal Court. All claims are confidential, unless express written permission is granted to reveal the identity of the complainant.
Several recent judgements have upheld the principles of the Workplace Relations Act of 1996. One of the most recent is the case of the Construction, Forestry, Mining and Energy Union (CFMEU) v Coal and Allied Operations Pty ltd (5 November 1999, Justice Branson). In this case, Justice Branson imposed penalties on Coal and Allied Operations for conduct that breached the freedom of association provisions of the 1996 Act.
Recently, the war on terrorism has presented an unexpected threat to Australia's freedom of association laws. Amnesty International has recently noted that terrorism laws pose a potential threat to freedom of association in Australia. Security legislation bills are designed to protect Australia from terrorist activities, in light of the terror attacks in New York City on September 11th. Amnesty International argues that these bills instead have the potential to contravene international standards of human rights.
Specifically, Amnesty international has argued that terrorism laws create uncertainty in law and the potential for abuse. This certainty makes it difficult for people to determine if their actions are unlawful. Potentially, terrorism laws may conflict with freedom of association, and already somewhat thorny topic in Australian law. The Australian Constitution does not directly endorse freedom of association.
Amnesty International spokesperson Ms Nicole Bieske stated, "We fear that legislation... threaten(s) the shield of protection for human rights. Amnesty International strongly reminds the government it is imperative that legislature is scrupulous in its adherence to human rights principles at all times." great deal of debate has been…[continue]
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