Dual prisms of rights and fairness: IR Vision 2015

The passage of the WorkChoices amendments to the Workplace Relations Act through the Senate in December 2005 was a major turning point, not simply the unfolding of a process of change which commenced 20 years earlier under the Hawke Labor Government. This point was made tellingly by former prime minister Hawke, who recently described the amendments as 'an assault upon the very core of what generations of our citizens have been proud to boast of… as the essence of the Australian character – the 'fair go', the belief that might is not right, that it is not those already with privilege who should be protected by government but the most vulnerable in our society'. From the Government's policy perspective, the new laws will unshackle us from an anachronistic and inefficient system and unlock gains which will enhance economic prosperity through improved global competitiveness.

In my view a re-articulation of the idea of the fair go must be at the centre of a twenty-first century vision for Australian industrial relations. Significantly, the major struggles of industrial and industrialising societies over the last 200 years have turned on the rights of citizens at work and in general these rights have increased in line with economic development and political democracy. Until comparatively recently federal and state legislation providing for conciliation and arbitration in industrial relations was the primary vehicle for regulating the employment relationship and, in the process, creating a comprehensive framework of employee rights. This experience demonstrates the proposition that inevitably an industrial relations system is much more than a vehicle for delivering superior economic outcomes. Even if the policy focus is ostensibly on economic performance, as is presently the case, the industrial relations arrangements and laws adopted will profoundly shape not only our rights as citizens at work but also our way of life. Consequently, the centrepiece of my industrial relations vision is the need to establish the rights of citizens at work through legislation and then to articulate those rights through a system of independent industrial tribunals.

This is not to say that the industrial relations system as it existed prior to 1996 could not have been improved on. The arrangements which developed over the previous century were unnecessarily complex and difficult to understand. This is most evident in relation to the sometimes uncertain intersection of the federal and state industrial relations jurisdictions. Similarly, the concept of a 'paper dispute' evolved to enable the federal industrial relations jurisdiction to achieve its fullest reach within the confines of section 51(xxxv) of the Australian Constitution. On its own terms, this provision limited federal governments to making laws for the creation of industrial tribunals for the purposes of preventing and settling interstate industrial disputes using the processes of conciliation and arbitration. These deficiencies highlight the case for making systems of industrial relations regulation simpler and more transparent – but that is all.

The second feature of a vision for industrial relations then should be the development of a single national system. As the complex provisions of the WorkChoices legislation demonstrate, a hostile takeover of the state jurisdictions by the federal government is not feasible. An exercise in co-operative federalism such as the Council of Australian Governments (COAG) processes which were utilised for developing and implementing National Competition Policy may provide a relevant model.

Because of the historically continuous concern with the fair go and the more recent and irreversible shift from award regulation toward individual and collective agreements, the mechanism for articulating labour standards and determining intractable disputes is central. It was the concern with justice which led to the establishment of tribunals which were vested with powers of conciliation and arbitration.

Historically, this mechanism has been used to establish and update standards in areas such as annual leave, parental leave, redundancy, superannuation, casual employment, and most importantly minimum wages. At the present time the adversarial character of the arbitral model is under siege, but only in the industrial relations sphere. To the extent that a mechanism is needed to articulate and enforce rights at work, there are compelling reasons to utilise a public process which evaluates the evidence and argument and produces reasoned determinations which establish precedents.

A particular strength of the Australian model has been that the 'judges' (usually commissioners) were drawn equally from the major sectors (employers, unions and governments) but they gained independence by having tenure. This has meant that tribunal decisions in setting labour standards (particularly minimum wages) have generally been regarded as legitimate. This leads to the third element of the vision: the establishment of specialist industrial tribunals and courts to interpret and enforce the full gamut of labour rights and articulate the associated standards. Because of the distinctive character of labour, the employment jurisdiction should be quite separate from the established hierarchy of courts which do not have as their central concern or expertise the provision of justice in the workplace.

The workplace has always been a focus of employment regulation, but as noted above, there has been a shift to agreement making, and this leads to the fourth element of the vision. In order to provide fairness at work four major conditions must be satisfied. First, workers must have the right to collectively bargain – at present this choice effectively resides with the employer. Second, this must be underpinned by the right to engage in industrial action and the obligation of good faith bargaining. Third, fairness requires that agreements, particularly individual agreements be tested by reference to a framework of independently established labour standards which are reflective of contemporary conditions and expectations. Finally, agreements must contain a disputes procedure capable of achieving a conclusive resolution of any interest or rights disputes arising in relation to that agreement. Unlike the situation produced by the WorkChoices amendments, but consistent with the ideal of co-operative industrial relations, the parties must not be denied the power to agree to resolve particular types of disputes, eg. over union right of entry or termination of employment, through their own procedure. Nor can the parties be denied the right to a binding determination through the mechanism of an industrial tribunal as now applies.

While both major political groupings have expressed an interest in employee participation, neither has attempted to legislate for such rights. This is all the more surprising given the salience of industrial citizenship to the traditions of the Labor Party. From the perspective of the Government, this omission is made more glaring because the WorkChoices amendments promise to reduce union participation in workplace regulation without replacing it with other individual or collective mechanisms. Moreover, declining union coverage has meant that the majority of workers have no guarantees of access to employee voice mechanisms such as joint consultation and works councils. Thus the final element of the vision is the need to mandate the establishment and maintenance of employee voice mechanisms in all workplaces of significant size.

This vision for industrial relations requires further explanation and elaboration; however it addresses the key deficiencies of the contemporary Australian industrial relations regimes through the dual prisms of rights and fairness.