Australian Statutory Labour Law and the near Death Experience of the Doctrine of Managerial Prerogatives
Carrigan, Frank, University of Western Sydney Law Review
The study of how the different arms of the state apparatus operate is a fascinating and politically important aspect of a capitalist democracy. One of the key state apparatuses is the judiciary. Law exercises its authority in a number of ways. Whilst it plays a key role in securing the extant social formation it achieves this aim largely in the ideological sphere. Operating as ideological functionaries the judiciary has developed a degree of autonomy from yvested interests that enables it to arbitrate disputes in a society enmeshed in a web of competing financial arrangements. The competitive individualism of capital ensures disunity in its ranks, and this combined with a subordinated working class, provides the elbow room for the judiciary to exercise to a substantial extent a free hand in its dispute settlement procedures. (1) This judicial autonomy is exhibited in myriad ways. For example, judges are conceptual ideologists who engage in the type of creative thinking that is required to solve problems that emerge from economic class conflict. Moreover, in a divided society judges are strategically placed to safely channel the numerous contradictions that bedevil class societies. Operating within the prism of ostensibly depoliticised rules, the judicial apparatus of the state is empowered to mediate relations between rulers and ruled. Following on from this observation, industrial arbitration is a core area where judges can canalise the class issues that emerge from asymmetrical labour contracts into the safe pastures of the courts. Legalism replaces the direct action of strikes or other challenges to the rule of capital. Judges are indispensable agents in facilitating the reproduction of social and power relationships, and they achieve that objective in the context of relative independence from the ruling class. They are not simply mouthpieces of the system. Whilst law is a coercive component of the state machine that serves the power elite it is more than an instrument that simply endorses the selfish requirements of rulers. Judges utilise their partial independence to circumscribe the actions of members of the economic elite threatening the overall stability of the system. In the name of social cohesion judges will assert the rights of unionists who are being confronted by the arbitrary behaviour of employers. State intervention in the judicial sphere is not a one way street. Within the limits set by capitalist relations of production the judiciary will on occasion exercise their power to support and extend the position of workers. The judges are key state actors at the forefront of the battle to perpetuate the age of capital. (2) However, it is important to recognise that they are not one-dimensional figures. They tame the more destructive aspects of the hubris unleashed by property rights. They give pluralist democracy some substance. Their complex and contradictory role can be gauged by investigating the structural forces within Australia during the twentieth-century that shaped the judicial doctrine that ruled in the sphere of statutory labour law. As the epoch of the centrality of the labour power provision of the Constitution in regulating industrial relations in Australia fades from view, it is worth examining the judicial interpretation of the constitutional and legislative texts that governed labour relations in Australia for the bulk of the twentieth-century. Such an analysis sheds light on judicial intervention both retarding or extending workers' rights and how ideological divisions within the judiciary are reflected in legal reasoning. It also illuminates the process of how law acts to allocate political power to the rulers whilst not requiring the complete submission of the ruled.
The High Court is the third branch of government and an integral part of the state and since federation it has been responsible for interpreting the Australian Constitution. The Constitution defines the scope of the Commonwealth's power to issue laws regulating the labour market. …