To Be Or Not To Be a Member – Is That the Only Question? Freedom of Association Under the Workplace Relations Act

By David Quinn

In interpreting the Workplace Relations Act's freedom of association provisions, Australian courts have used a primarily individualist prism that has limited the Act's capacity to protect unions and collective activity.

In comparison, the provisions were applied prior to 1996 with a view towards their central function of supporting unions and the conciliation and arbitration system. This article reviews the major cases decided under the Workplace Relations Act (Patrick Stevedores and the MUA, AWU and BHP Iron Ore) and argues that an individualist approach is inadequate and inconsistent, despite the major reforms to the Act introduced in 1996. It suggests that Pt XA can and should be used to protect the collective activities of union members that are the necessary practical expression of the right to freedom of association and that courts have been led into error by focusing upon individual rights.

(Australian Journal of Labour Law. vol. 17, no. 1, May 2004)