Enduring values or radical change - the shaping of labour law legislation

2017-02-16T02:48:40Z (GMT) by Naughton, Richard Brian
The argument made in this thesis is that there are four core elements underlying the Australian industrial relations system. These are that: (a) there is a role for an independent statutory tribunal; (b) the system takes account of the public interest, in that it is influenced by matters affecting the general community welfare and considers these matters together with the rights of the parties; (c) there has always been a tradition of "protecting the weak" (or the low paid) under the system; and (d) trade unions have always had a privileged role under the system (as a means of balancing the position of the industrial parties). These core elements of the Australian industrial system, and the interrelationship between them, have sustained aspects of fairness that are considered to be an emblematic feature of the Australian system. These four core elements can be identified in the writings of legal and industrial relations scholars in the period between 1904 and 1993 (the period when a system of compulsory conciliation and arbitration existed in Australia). This is significant because it was Australia (together with New Zealand) that fashioned the system of compulsory arbitration in order to prevent and settle industrial disputes. The core elements of the system were also considered and analysed by the federal industrial tribunal over that time, as it sought to resolve disputes and develop principles of fairness. The thesis analyses important tribunal decisions between 1904 – 1993 which confirm that the core elements were acknowledged as underpinning the practice and operation of the system. It is contended that even though the focus of Australian industrial relations shifted to a system based upon enterprise bargaining in 1993, the four core elements of the system remained in place. The bargaining system retained a statutory tribunal which reviewed the agreement-making process, the public interest test was cemented in place in various bargaining provisions (or else was related to the "no disadvantage" test used as a mandatory requirement for agreements), award and minimum standards continued to protect the weak, and union parties continued to serve as the representatives of employees and were entitled to benefits under the system. Certainly some of these observations are open to challenge during the period when the Howard government's Workplace Relations Amendment Act (Work Choices) Act 2005 (Work Choices) was in place. Nevertheless, while battered and bruised the four core elements remained in place during the Work Choices period, and were readily restored under the current legislation (the Fair Work Act 2009 (the FW Act)). As is evident from its title the FW Act emphasizes questions of “fairness” in the Australian system, and is strongly influenced by the four core elements outlined above. In Chapter 9 of the thesis a comparison is made between the position of New Zealand, and that of Australia. New Zealand established a system of compulsory arbitration shortly before Australia. The four core elements identified as consistent features of the Australian system are not equally a part of the current New Zealand industrial relations system. It is argued that the were always differences in the way compulsory arbitration operated in New Zealand, and the four “core” elements were not as well entrenched under the New Zealand system.