Australian Laws of Freedom of Association
Freedom of Association
There is no express right to freedom of association guaranteed by the Australian Constitution. In the past decade the High Court has expressed the view that the Constitution contains an implied freedom of communication with respect to political matters or public affairs. There is a possibility that this implied right could be extended to cover freedom of association (as a corollary of freedom of communication) given that the two are so closely linked. At present, however, such an implied right has not been extended to freedom of association. That said, statutory provisions for freedom of association in Australia do exist, although until recently, only at the state level. The Commonwealth Industrial Relations Reform Act 1993 (Cth) has, however, 'internationalized' Australian labor law, bringing it more into line with international labor standards generally. This legislation provides a degree of protection with regards to the right to strike (which may be regarded as an aspect of the right to freedom of association). This Act will be discussed below.
Another possible way in which freedom of association could be protected in Australia would be through national application of international law (this would be in reliance on Australia's external affairs power). To some degree this has been done in the Industrial Relations Reform Act 1993 (Cth) which is discussed in below. Australia has ratified international covenants and ILO Conventions concerning freedom of association. The documents ratified include the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and ILO Convention 87 (Freedom of Association and Protection of the Right to Organize).
National Labor Law
Recent national legislation enacted has 'internationalized' Australian labor law. The Industrial Relations Reform Act 1993 (Cth), made radical changes to various areas of national labor law (the Industrial Relations Act 1988 (Cth)) by using the external affairs power of the Constitution to circumvent some of the restrictions contained in the traditional use of the labor power contained in the Constitution. The drafters drew on North American, European and international laws for inspiration and much of the new legislation reflects international thinking in these areas. One area where reform has taken place is in the area of enterprise bargaining. Prior to the enactment of the Reform Act almost all strikes were regarded as unlawful in common law and industrial legislation. The Reform Act changes this by giving trade unions a limited right to strike when negotiating an enterprise agreement for a single business or place of work. This right is based on the ILO convention and on the provisions in the ICESCR. There is debate regarding whether the right to strike is incorporated as part of the right to freedom of association. However, a strong argument can be made that this is the case. ILO Convention 87 has been interpreted by the ILO's Committee of Experts as being incompatible with a denial of the right to strike. To this extent Australian workers have a right to >freedom of association=.
Doyle, The Industrial/Political Dichotomy: The Impact of the Freedom of Communication Cases on Industrial Law 8 AJLL 1 (1995).
McCallum, The Internationalisation of Australian Labour Law: The Industrial Relations Reform Act 1993 15 SydLR 122 (1994).
McEvoy & Owens, The Flight of Icarus: Legal Aspects of the Pilots= Dispute 3 AJLL 87 (1990).
McEvoy & Owens, On a Wing and a Prayer: The Pilots Dispute in the International Context 6 AJLL 1 (1993).
Pittard, International Labour Standards in Australia: Wages, Equal Pay, Leave and Termination of Employment 7 AJLL 1 (1994).
Vranken, Demise of the Australian Model of Labour Law in the 1990s CLLJ 1 (1994).
Vranken, Book Review 9 AJLL 1 (1996) (Reviewing Blanpain & Engles, European Labour Law (3d ed. 1995)).
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