The ILO has, in reports concerning Australia’s compliance with Convention No. 87, has repeatedly requested the Australian Government to review the Secondary Boycott Provisions “…with a view to bringing them into full conformity with the Convention”30. It is simply disingenuous to bring any argument that the Secondary Boycott Provisions comply with Australia’s International Obligations. The response to this unarguable proposition by most Australian policy makers, most recently the Harper Review, has been to ignore it and instead refer to some policy basis routed in history as an independent justification for the law as it stands today.
Most, including the Harper Review, choose to attribute the secondary boycott provisions to the Swanston Committee Report of 1976. Doing so is re-writing history. The Swanson Committee was concerned with secondary boycotts among other things, but what it actually recommended be done about them is strikingly similar to what we would recommend, although for different reasons. What is telling about the Swanson Committee is that they identified that that industrial relations laws as they stood at the time (and indeed in the relevant respect remain so today), were not capable of providing a framework for resolving disputes involving secondary boycotts:
“10.17 In the usual case, secondary boycotts do not involve a dispute between an employer and employees which could be brought by either party before the Australian Conciliation and Arbitration Commission under the Conciliation and Arbitration Act. In any event the employer may not choose to bring the matter before the relevant body, even if he wished to do so, for fear of widening the "dispute" and having his whole operations shut down. Moreover, without any collusion at all with his employees, he may himself find his own position in sympathy with his employees because their actions relieve him from the pressures of his customers for him to make concessions to them on price. Thus it is quite unrealistic to expect that the employer will, as a matter of course, bring secondary boycotts before the body.
10.18 But the trader at whom the employees' actions are aimed is deprived of his ability or his liberty to trade in such manner as he sees fit, and the community suffers, without anyone (the trader himself or consumers) being able to raise the matter in a forum impartial as between all the persons involved or affected. There are some common law actions in tort which might, in theory, be available but these are in most cases dead-letters in practice.
10.19 In these circumstances we recommend that the law provide an effective avenue of recourse for the trader directly affected, by allowing him access to an independent deliberative body. That some procedures for solving the matter should be available was something on which submissions of interested parties were virtually unanimous.”31
We agree that an independent body should be available to resolve Secondary Boycott disputes and we believe that the appropriate body is the FW Commission. The capacity of the FW Commission to resolve such disputes should be considered as the natural consequence of allowing our industrial relations laws to move beyond meaningfully facilitating collective agreement making only between employees of single employer about an artificially constrained series of matters.
Where we depart from the Swanson Committee is in its misunderstanding of the nature and scope of the interests protected by our international obligations, a matter which we explored in some detail in our reply submission to the Harper Review32.
The true origin of the Secondary Boycott provisions was legislative reform that deviated from what the Committee had recommended to it, by creating an enforceable legal right to penalties, injunctions and compensation in a Court (and a Court alone), a right which could be pursued not only by the affected trader, but also at the instigation of the Trade Practices Commission, the Attorney General, or any other person33. Far from being a “free market” exercise, these reforms paved the way for the government, contrary to its international obligations, to be an agitator and market participant to contain the sphere of activity of organised labour.