Long ago we stated the reason for labour organisations. We said that they were organised out of the necessities of the situation; that a single employee was helpless in dealing with an employer; that he was dependent ordinarily on his daily wage for the maintenance of himself and his family; that if the employer refused to pay him the wages that he thought fair, he was nevertheless unable to leave and resist arbitrary and unfair treatment; that union was essential to give labourers opportunity to deal on an equality with their employer (Supreme Court, United States of America, Quoted in Weiler, 1984, p. 364).
There has ... arisen ... a school of thought which asserts that a free struggle among unequal individuals, or combinations of individuals, means the permanent oppression and degradation of those who start handicapped, and inevitably results in a tacit conspiracy among the more favoured classes (1) to maintain or improve their own positions of vantage at the cost of the community at large (Sidney and Beatrice Webb, 1911, p. 598).
Throughout the twentieth century Australia has made extensive use of industrial tribunals to regulate relationships between the owners of capital and employees, on the one hand, and workers and union, on the other hand. Industrial tribunals emerged in response to the perceived problems associated with strikes/lockouts and economic depression experienced during the 1890s. Their creation resulted from the work of middle class intellectuals, persons outside or apart from the traditional struggles between capital and labour. These reformers rejected the nostrums of laissez faire economics; they believed that the state should play an active role in regulating industrial relationships. (2) Henry Bournes Higgins, for example, a prominent figure in the development of Australia's system of industrial regulation, and the second President of the Commonwealth Court of Conciliation and Arbitration between 1907 and 1921, maintained that industrial tribunals would usher in 'a new province for law and order'. He believed that:
the process of conciliation, with arbitration in the background, is substituted for the rude and barbarous process of strike and lockout. Reason is to displace force; the might of the State is to enforce peace between industrial combatants as well as between other combatants; and all in the interests of the public (Higgins, 1915, p. 14).
While Higgins was a strong advocate and staunch defender of industrial tribunals--particularly of attacks directed against his court (Higgins 1919, 1920)--we need to be wary of overstating the role that he believed they should perform. In his hands industrial tribunals would determine minimum terms and conditions of employment--the most famous example being the 1907 Harvester judgement which established such a wage for an adult unskilled male labourer (2 CAR 1)--and provide a vehicle for the resolution of industrial disputes. Higgins stated that "The ideal of the Court is a collective agreement settled, not by the measurement of economic resource, but on lines of fair play' (Higgins, 1919, p. 190). He also said
The Court leaves every employer free to carry on the business on his own system, so long as he does not perpetrate industrial trouble or endanger industrial peace; free to choose his employees on their merits and according to his exigencies; free to make use of new machines, of improved methods, of financial advantages, of advantages of locality, of superior knowledge; free to put the utmost pressure on anything and everything except human life (Higgins, 1915, p. 21).
In November 1991 the federal Liberal and National Parties released Fightback, an extensive package of reforms which would be introduced if they were victorious at the next federal election. Fightback extolls the virtues of individual choice and market mechanisms, and outlines what it hopes will be regarded as a deregulatory agenda for Australia. …