Who really controls who represents workers in Australia?
- Brian AJ Newman, LLB
- 7 days ago
- 7 min read
Public Sector Employment, Registered Unions, and the International Right to Freedom of Association
Australia often presents itself internationally as a nation committed to democracy, fairness, workplace rights, and human rights protections. It is a signatory to multiple international conventions through the United Nations and the International Labour Organization (“ILO”) that protect the rights of workers to freely associate, organise, and choose representation without interference.
Yet, when one critically examines the legislative architecture governing industrial relations in Australia — particularly in the public sector — a significant contradiction emerges.
In effect, governments who are themselves the employer frequently determine who workers are permitted to be represented by.
This creates a profound tension between domestic industrial legislation and international human rights principles concerning freedom of association and worker autonomy.
The Legislative Divide in Australia
Australia operates under a dual industrial relations framework.
State Governments and State Industrial Relations Systems
State governments legislate industrial relations systems governing many public sector employees through state legislation such as:
Industrial Relations Act 2016 (Qld)
Industrial Relations Act 1996 (NSW)
Equivalent state legislation across Australia.
These Acts regulate:
registration of industrial organisations,
bargaining rights,
representation rights,
industrial action,
and participation in state industrial tribunals.
In Queensland, for example, the Industrial Relations Act 2016 (Qld) establishes a framework where only certain registered industrial organisations receive formal standing and recognition within the Queensland Industrial Relations Commission (“QIRC”).
The consequence is significant:
The Queensland Government, as employer of public servants, corrective services officers, nurses, teachers, police, and countless other workers, simultaneously participates in determining the legislative framework that dictates who may formally represent those workers.
Federal Governments and the Fair Work Act
Similarly, the Commonwealth Government controls the Fair Work Act 2009 (Cth), which governs:
national system employees,
constitutional corporations,
much of the private sector,
and substantial portions of the Commonwealth public service.
The Fair Work Act creates rights and privileges attached to “registered organisations” under the Fair Work (Registered Organisations) Act 2009 (Cth).
Again, the issue becomes apparent:
The Commonwealth Government, which is itself one of Australia’s largest employers through the Australian Public Service (“APS”), controls the legislative framework that determines which entities receive formal recognition as employee representatives.
This raises a legitimate philosophical and human rights question:
Should governments, acting as employers, possess the power to determine which worker organisations receive legal legitimacy and representational standing?
Freedom of Association Under International Law
Australia is not operating in a vacuum.
Australia is a signatory to multiple international conventions protecting worker organisation, freedom of association, and collective representation.
These principles are not optional political ideals. They are internationally recognised human rights standards.
ILO Convention No. 87
Freedom of Association and Protection of the Right to Organise Convention 1948
Australia ratified ILO Convention No. 87 on 28 February 1973.
Article 2 provides:
“Workers and employers, without distinction whatsoever, shall have the right to establish and… join organisations of their own choosing without previous authorisation.”
This principle is extraordinarily important.
The Convention does not say:
organisations approved by government,
organisations registered by government,
or organisations sanctioned by tribunals.
It says:
“Organisations of their own choosing.”
That wording is deliberate.
It recognises that true freedom of association cannot meaningfully exist if the State determines which organisations are legitimate and which are not.
Article 3 – Organisational Independence
Article 3 further provides:
“Workers’ organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes.”
Importantly:
“The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof.”
This principle becomes highly relevant where industrial systems create legislative monopolies or structural advantages favouring registered organisations over independent advocacy groups, grassroots worker collectives, or non-traditional labour organisations.
ILO Convention No. 98
Right to Organise and Collective Bargaining Convention 1949
Australia ratified Convention No. 98 on 28 February 1973.
Article 1 provides protection against anti-union discrimination.
Article 2 states:
“Workers’ and employers’ organisations shall enjoy adequate protection against any acts of interference by each other or each other’s agents or members.”
The underlying principle is organisational independence.
Workers must be capable of organising freely and independently without domination, manipulation, or interference.
Universal Declaration of Human Rights (“UDHR”)
Australia supported the adoption of the UDHR in 1948.
Article 20 provides:
“Everyone has the right to freedom of peaceful assembly and association.”
Article 23(4) provides:
“Everyone has the right to form and to join trade unions for the protection of his interests.”
Again, the language is broad.
The focus is not upon state registration.
The focus is on human freedom and collective protection.
International Covenant on Civil and Political Rights (“ICCPR”)
Australia ratified the ICCPR in 1980.
Article 22 provides:
“Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.”
Restrictions are permitted only where:
necessary in a democratic society,
and proportionate for national security, public safety, public order, or protection of others’ rights.
The existence of legislative systems that effectively centralise representation through government-recognised organisations raises legitimate questions regarding whether such restrictions remain proportionate to modern democratic labour rights.
The Public Sector Contradiction
The contradiction becomes especially acute within public sector employment.
Public servants are employed by the State.
Yet the State:
legislates the industrial framework,
controls recognition systems,
determines registration requirements,
and often influences which entities gain institutional access.
In practical terms, this can create circumstances where workers are channelled toward particular industrial organisations that operate within the existing legislative architecture approved by government itself.
Critics argue this can undermine:
independent worker advocacy,
grassroots labour movements,
alternative worker organisations,
and non-traditional representative models.
The Need to Protect Independent Worker Organisations
The international conventions do not merely protect large institutional unions.
They protect:
worker organisation generally,
collective advocacy,
freedom of association,
and the right of workers to determine who speaks for them.
That principle must logically extend to:
independent advocacy organisations,
unregistered worker associations,
grassroots collectives,
industry-specific organisations,
and modern labour movements operating outside traditional union structures.
A democratic labour system should not fear independent worker advocacy.
It should encourage it.
The Importance of Non-Traditional Advocacy Models
There are legitimate reasons why workers may seek representation outside traditional registered trade unions.
Workers may perceive:
political conflicts,
institutional bureaucracy,
lack of responsiveness,
ideological capture,
or insufficient advocacy.
Others may simply want:
industry-specific representation,
direct advocacy,
or independent voices free from broader political affiliations.
International labour law protects that choice.
Freedom of association means little if workers may only choose from government-recognised institutions operating within tightly controlled legislative frameworks.
The Evolution of the Queensland Prison Officers Association and MYUNION
In 2003, the Queensland Prison Officers Association (“QPOA”) was established through a collective of interested Queensland Corrective Services employees and like-minded individuals seeking independent advocacy for prison officers.
Over time, that movement evolved beyond a single occupational cohort.
It developed into what is now traded as MYUNION — an independent advocacy movement supporting workers across Australia regardless of:
industry,
occupation,
employment type,
or industrial instrument.
The philosophy underpinning MYUNION is grounded in a simple proposition:
Workers should have the right to choose who advocates for them.
Not merely who government legislation prefers.
Not merely who receives institutional recognition.
But genuinely free choice.
Registered Trade Unions and Their Historical Purpose
Historically, registered trade unions emerged to protect:
wages,
conditions,
safety,
dignity,
and social welfare interests of workers.
That historical role remains critically important.
However, the existence of registered unions should not extinguish or diminish the rights of independent worker organisations to also advocate, organise, and represent.
Pluralism strengthens democracy.
Competition of ideas strengthens advocacy.
Worker choice strengthens accountability.
A Modern Labour Movement Requires Freedom
Modern workforces are changing rapidly.
Workers increasingly seek:
flexible representation,
issue-specific advocacy,
independent voices,
digital organisation,
and alternatives to traditional institutional models.
International human rights law does not mandate monopoly representation systems.
Rather, it protects freedom of association itself.
That freedom necessarily includes:
the freedom to organise independently,
the freedom to advocate collectively,
and the freedom to choose representatives without undue state interference.
Conclusion
Australia remains bound — morally, politically, and internationally — by conventions protecting freedom of association and collective representation.
Yet serious questions remain regarding whether existing industrial relations systems sufficiently protect:
independent worker organisations,
unregistered advocacy groups,
and alternative labour movements.
Where governments act simultaneously as:
employer,
legislator,
and regulator of worker representation, there is an inherent risk of structural conflict.
True freedom of association requires more than symbolic rights.
It requires genuine freedom for workers to:
organise,
advocate,
assemble,
and choose representation without institutional gatekeeping.
The future of labour advocacy in Australia should not depend solely upon state-sanctioned organisational models.
It should embrace a broader democratic principle:
Workers themselves should decide who speaks for them.
United Nations and International Labour Organization References
Universal Declaration of Human Rights (UDHR)
Article 20 and Article 23 protect freedom of association and the right to form and join trade unions.
United Nations official text:
International Covenant on Civil and Political Rights (ICCPR)
Article 22 protects freedom of association, including the right to form and join trade unions.
United Nations Treaty Collection:https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights
Australia ratified the ICCPR on 13 August 1980.
ILO Convention No. 87
Freedom of Association and Protection of the Right to Organise Convention, 1948
This convention establishes the right of workers to create and join organisations “of their own choosing without previous authorisation.”
International Labour Organization official page:https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C087
Australia ratified Convention 87 on 28 February 1973.
ILO Convention No. 98
Right to Organise and Collective Bargaining Convention, 1949
Protects workers and organisations against interference and anti-union discrimination.
International Labour Organization official page:https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C098
Australia ratified Convention 98 on 28 February 1973.
Office of the High Commissioner for Human Rights (OHCHR)
Comprehensive human rights treaty database and explanatory materials.
Australia and International Labour Standards
ILO country profile for Australia:
This includes:
ratified conventions,
reporting obligations,
supervisory observations,
and compliance history.
Particularly Relevant Extracts for Your Article
ILO Convention 87 – Article 2
“Workers and employers, without distinction whatsoever, shall have the right to establish and… join organisations of their own choosing without previous authorisation.”
UDHR – Article 23(4)
“Everyone has the right to form and to join trade unions for the protection of his interests.”
ICCPR – Article 22(1)
“Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.”
These instruments form the strongest international foundation for the proposition that workers should retain genuine autonomy in determining who advocates and organises on their behalf.
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