Freedom of association

Contributed by Clare Ozich and current to 1 September 2005

Both the Workplace Relations Act 1996 (Cth) and the Industrial Relations Act 1979 (WA) impose penalties on any person – employer, employee or unionist – who treats another more or less favourably, depending on their membership of an industrial association. Severe fines are imposed for any form of discrimination based on membership or non-membership of an association.

The ability for employees, unions and employers to engage in lawful industrial action is governed by legislation in the federal jurisdiction. Under the Workplace Relations Act, employees, unions and employers can take lawful industrial action, called protected action, in limited circumstances: s.170ML. As part of the collective bargaining scheme, industrial action taken during a defined period of negotiating a certified agreement may be protected. The scheme of protected action confers certain immunity with respect to the industrial action; that is, the persons taking the protected action cannot be sued in relation to that action. Industrial action taken for reasons other than those relating to negotiating a certified agreement, including secondary boycotts, are not protected.

There is no legislative prohibition on the right to strike under the Industrial Relations Act 1979 (WA). There is also no concept of protected industrial action – thus employees or unions engaging in industrial action are liable to be sued in common law courts. There is the right to refer industrial action to the WAIRC as an industrial dispute to be resolved between the parties. If a conciliated outcome does not result, the WAIRC may make orders, for example for the employees to return to work.