Academic journal article The Economic and Labour Relations Review : ELRR

Australian Labour Law and the Rudd Vision: Some Observations

Academic journal article The Economic and Labour Relations Review : ELRR

Australian Labour Law and the Rudd Vision: Some Observations

Article excerpt


In this brief paper, I offer some observations on what I shall call the 'Rudd Vision of Australian Labour Law'. Before doing so, however, it is appropriate to explain how the WorkChoices laws sought to extinguish the purpose and rationale of labour law.

Labour Law's Purpose and the WorkChoices Laws

I have always regarded the purpose of labour law to be the establishment and maintenance of a series of legal rules to ensure that working women and men receive fair and appropriate wages and other terms and conditions of employment in return for their labour. These labour law rules are necessary because employers, who accumulate capital, almost always possess greater bargaining power than do workers who sell their labour to support themselves and their families. The capacity of employers to accumulate capital enables them to invest in employing enterprises and, of even more importance, to disinvest in undertakings, that is to transfer their capital into other ventures whether in Australia or overseas. Individual employees do not possess the means to match these powers. As Sir Otto Kahn-Freund so eloquently put it three dozen years ago, 'the relation between an employer and an isolated employee or worker is typically a relation between a bearer of power and one who is not a bearer of power. In its inception it is an act of submission, in its operation it is a condition of subordination' (Kahn-Freund 1972: 8; Davies and Freedland 1983: 18). In this present era where free market economics and neo-liberal political thought dominate our lives, the imbalance of bargaining power between employees and employers is either dismissed as nonsense or at best regarded as unfashionable. Yet, it has been labour law's focus upon protecting and enhancing the lives of employees by lessening the unilateral power of management--either via conciliation and arbitration or collective bargaining--which has contributed significantly to improvements in the living standards of workers and their families.

By its very nature, collective bargaining differs greatly from individual contract-making. The latter focuses upon the rights, obligations and duties of the individual employee and the employer. However, collective bargaining is far broader in scope. In large part, it is an accommodation between the social and economic interests of two groups of actors who possess markedly different interests. It is an accommodation between employees as industrial citizens and their employers (Bamber and Sheldon 2001: 550).

When the WorkChoices laws were enacted by the Howard Government in late 2005, (2) in my opinion they were designed to undermine labour law's purpose by further developing mechanisms to decollectivise workplaces. A great deal has been written on these laws, (3) and there is no need for me to recapitulate them in any detail. In my view, the primary vice of the WorkChoices laws was their adoption of individual statutory agreements known as Australian Workplace Agreements (AWAs). These workplace agreements were established to decollectivise workplaces and to enshrine individual contract-making over collective bargaining. In other words, these agreements were designed to legitimate the inherent inequality of bargaining power between an employer and an individual employee. Under the WorkChoices laws, employers were able to sign workplace agreements at any time with individual employees. Even where these employees were bound by an existing collective agreement, nevertheless workplace agreements were valid and could contain terms and conditions of employment better or worse than those in the collective agreement. (4) Another way in which primacy was given to individual agreement-making was that once an employee signed an individual workplace agreement, she or he was unable to return to collectively agreed to terms and conditions of employment. (5) Put another way, when an individual workplace agreement reached its end date and was terminated by the employer, the employee was thrown back onto the Australian Fair Pay and Conditions Standard, that is back onto the WorkChoices' very narrow safety net, which may also include any protected award provisions. …

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