Showing papers in "Economic and Labour Relations Review in 2008"

Social Exclusion: Challenges for Research and Implications for Policy

Abstract: Social exclusion is influencing how social policy issues are conceived, debated, researched and addressed, particularly in Europe. It has also been given prominence as a focus of the Rudd Government's social policy agenda. This paper reviews the debate over the definition and measurement of social exclusion, focusing on its relationship with poverty, defined in terms of low-income. The analysis is based on the premise that conceptual and measurement issues can play an important role in identifying causation, and thus point to the kinds of actions needed to address the problem. The argument is illustrated by drawing on recent Australian research that shows that exclusion takes many different but often inter-connected forms, and that there is a low degree of overlap between exclusion and poverty. The implications of the findings for research and policy are briefly discussed.

Australian Labour Law and the Rudd Vision: Some Observations

Abstract: Introduction 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. …

Low-Skill Workers, Technology, and Education: A New Vision for Workforce Development Policy

Abstract: Meeting the education and training needs of low-skill working adults will require a transformation of United States workforce development policy. A significant component of this transformation is the development of education and training programs that are crafted around the needs of these workers. Traditional classroom based learning — which is inflexible in time and place — presents a series of barriers to low-skill adults. This article documents the relationship between educational attainment and labour market status in the US. It explores the extent to which the use of technology and online learning may help to equalise access to education and training by providing learning opportunities that can better incorporate working adults' work, education and family demands.

Future Prospects for Labour Law-Lessons from the United Kingdom

Abstract: Introduction Globalisation presents major challenges for governments, and some are now looking to the United Kingdom as an example of how to create global competitiveness, economic efficiency and labour market flexibility in a way that also responds to demands for fairness at work. But what the British approach conceals behind its alluring synthesis of regulation and deregulation is the changing nature of labour law, which is now principally a tool of economic policy, and as such less concerned with its historic mission of promoting social justice. Labour law is thus increasingly concerned principally with the re-commodification of labour, rather than the protection of workers; with promoting the flexibility of labour, rather than the security of citizens; and with controlling rather than encouraging labour organisation as an instrument of industrial democracy (a term about which little is now heard). The transformative new synthesis between regulation and deregulation is thus no more than a form of labour standard dilution, and the creation of a labour law for employers, by reinforcing the primacy of the common law in the void left by legislatures and collective bargaining. This should not surprise us. Economic power eventually captures all legal disciplines, and there is no reason why labour law should be an exception, in an era in which free markets and global capital have triumphed, at least for the time being. The nature of that temporal triumph is reflected in a number of headline statistics about the achievements of New Labour and the New Labour Law. For example, since New Labour came to power in 1997, there has been an increase in income inequality, with the 'the proportion of wealth held by Britain's richest 10 per cent [rising] from 47 per cent [in the 1990s] to 54 per cent' in the current decade. (1) This clearly cannot all be blamed on the model of labour law now being pursued, with a number of other regulatory failures also being responsible. These and other equally depressing headline statistics are, however, a symptom of low labour standards, low levels of regulation, and contained labour power. Welcome to the New Labour Law, and prepare to be disappointed. The Re-Commodification of Labour The brilliance of New Labour in the United Kingdom has been to create an illusion: a regulatory environment of regulatory restraint. So although we have more--many, many more--'rights' since 1997, it remains the case nevertheless that (a) the direct regulatory impact of even the most significant of these 'rights' is quite limited, while (b) many of the 'rights' are porous and leak badly. Thus although gradually (and significantly) improving beyond its original adult rate of 3.50 [pounds sterling] an hour, the minimum wage--which does not purport to be a living wage--affects only a few predictable sectors of economy (most of which, paradoxically, are sheltered from global competition). The most recent increase in the minimum wage affected only about 3 per cent of the labour force. The regulatory impact of other measures is undermined by their exceptions and qualifications. So there is a right to a maximum 48-hour week; but there is also a right to waive that right (one of several infamous British opt-outs from EU minimum standards). There is a right not to be unfairly dismissed; but only if the employee has worked for a year or more. And there is a right to work flexible working hours; but only if the employer agrees. In the case of many of the 'rights', the weak and the vulnerable are cut out because of tight access conditions, and even where workers are 'protected', the rights are generally inadequately enforced, while in some cases the compliance costs for employers may not be very high. Unfair dismissal remains the classic example with the median compensation award somewhere in the region of 3,800 [pounds sterling] (with only 10 per cent of cases leading to a successful outcome for applicants after a hearing) (Employment Tribunal Service, 2007). …

Collective Bargaining under Trade Practices Law

Abstract: Introduction Under the Trade Practices Legislation Amendment Act (no.1) 2006 (Cth) (Amendment Act), small businesses are encouraged to engage in collective bargaining with big business through procedures allowing immunity from s 45(2) (1) of the Trade Practices Act (TPA). This raises the question of whether the relevant provisions of the TPA, administered by the Australian Consumer and Competition Commission (ACCC) under commercial law principles, is an appropriate vehicle for authorising collective bargaining of small businesses. It is arguable that the Workplace Relations Act (WRA) or a specific chapter of this Act, or successor legislation, embodying the labour law concept of the Act, provides a more appropriate basis for certain types of small businesses to engage in collective bargaining. Where one party sells goods/commodities to another, such a transaction properly constitutes a commercial relationship and commercial law should apply to such transactions. However, it is now generally accepted that labour/ service is not a commodity. A person who is 'employed' and a business that provides a 'service' are both effectively involved in the sale of labour or in the performance of work in the labour market. On this basis, there is a logical presumption that the transactions of self-employed persons operating as small business enterprises to provide/sell services to businesses, as well as those who are employed to provide/sell services to an employer, should both be regulated under labour law. It is also useful to be reminded of the common law basis of these two forms of labour transactions. The common law treats all parties in such transactions as equals, but it will come to the aid of a party that has been treated unfairly or harshly (Owen and Riley 2007: 17). However, unequal economic power as such in a labour/service transaction is not considered unfair and will not provide entitlement to legal remedy. Moreover, action to correct an unbalanced power situation by collective action on the part of the weaker party is not acceptable under common law. Such action is considered to be in restraint of trade. The common law assumes that all persons, including legal persons in the form of large corporations, are equal in power for purpose of buying and selling goods and services. Hence, statute has to intervene to exclude the common law and allow collective action to operate legally. Individual Bargaining Although the issue under consideration concerns collective bargaining, the current difference between these two types of labour or 'work' transactions is rooted in legal concepts affecting individual bargaining. Hence a word first about individual bargaining. From the economic or functional point of view, the different types of labour transactions are of little significance. One may be more cost-effective than the other depending organisational and technical factors, but in substance, work is performed in both types, adding to the income of the buyer and the seller. However, although I have characterised them as work relationships involving the sale of labour, the common law makes an important distinction between what is said to be a contract of service and a contract for service, with different implications and obligations for the parties in these two types of transactions. A clear example of a contract of service is when a person is engaged to work for a firm under the direction of the latter, to start and to finish in at certain times, to perform this task or that, with this person or that--in a kind of master and servant relationship (Howe and Mitchell 1999) in which the servant is dependent on the master. In addition to the doctrine of vicarious liability attaching to the employer, various other obligations have developed over time--such as superannuation contribution, occupational health and safety, income tax deduction from pay, and, above a certain wage bill, payroll tax--imposed on the buyer of such a service. …

The Future of Industrial Relations in Australia

Abstract: From 1985 to Now The institutions of industrial relations have proved to be more malleable than I expected in the mid-eighties, and the 'system' has, for better or for worse, been transformed. Underlying forces conducive to change have been the economy's exposure to external competition, related changes in the structure of industry and employment, the pervasive free market ideology and a sustained decline in union density. More fortuitous factors, such as the antipathy of an ACTU Secretary to members of the Australian Industrial Relations Commission, a Prime Minister's entrenched hostility to the 'system' (1), the Coalition's unexpected capture of a Senate majority in 2004 and the High Court's validation of WorkChoices, (2) have also contributed to the present state of play. Two decades ago, there was a strong consciousness of recent industrial and economic history, when 'stagflation' was the foremost problem of economic policy. The Australian Conciliation and Arbitration Commission was criticised for granting 'excessive' increases when, in truth, it was merely recognising the limits of its own capacity. An unambiguous advance since the 1980s has been the reduction, if not elimination, of union-induced cost inflation. The principal causes of this change seem to be: * more intense product-market competition, which stiffened employer resistance and reduced the capacity of unions to press demands without risk to their members' employment; * the widely understood determination of the Reserve Bank to limit inflation, which dampened inflationary expectations and altered the norms of employer, employee and union behaviour; and * the reduction of union power, which has mitigated the requirement for the Reserve Bank to resort to restrictive monetary policy. These changes have lessened the role for wage policy as an instrument of economic management. A common perception is that industrial regulation has been successfully directed to the encouragement of greater productivity. It has been argued, for example, that enterprise bargaining, encouraged by the Keating Government's legislation, caused the productivity 'surge' that characterised the late 1990s. Others have suggested that individual agreements--AWAs and their State counterparts--allowed employers to deploy their work forces more productively. Such claims are inherently difficult to test. The productivity surge was short-lived--from about 1994-95 to about 1998-99; and the effects of industrial relations factors cannot be separated empirically from those of the microeconomic reforms introduced in the 1990s (an issue discussed in Hancock et al 2007). Nevertheless, we may accept that, whereas in the 1960s and 1970s productivity was treated as a determinant of wage policy, since the mid-1980s there has been a greater emphasis on the reverse impact of industrial relations policies on productivity. Nostalgia is unhelpful. The industrial world has changed in ways that entail a different context from that of the 1980s; and the agenda has been reshaped. Employer Power Industrial relations systems rebalance in two ways the relative power of employers and employees. First, they enable some workers to enjoy terms of employment superior to those available in an unregulated market. Secondly, they qualify the employer's workplace power. The employment contract is essentially one of command and obedience in return for payment; and the employee is a subordinate. The contract is imprecise and incomplete, and the potential uncertainties are resolved by the employer's power to command (see Kaufman 2007: 5-33). Fundamental to the employer's workplace power is the capacity to dismiss. Conversely, the employee's lack of property in his or her job is a crucial weakness. Hence the risk of dismissal is both a weapon of control and a source of insecurity. In the 1980s and 1990s, limited protections against dismissal came with award and statutory provisions about redundancy and unfair and unlawful termination. …

‘The Government is the Best Landlord I've Ever Had’: Older Public Housing Tenants and Social Inclusion in Inner Sydney

Abstract: In this qualitative study based on in-depth interviews with fifteen older public housing tenants in inner-city neighbourhoods in Sydney, the life circumstances of older public housing tenants are e...

Minimum Wages, Unions, the Economy and Society

Abstract: One of the characteristics of the WorkChoices legislation introduced by the Howard government was the anti-union bias that permeated it. Some argue that this is appropriate because unions increase minimum wages, and economic theory shows that this will decrease employment and hence output. The Rudd government has signalled that it intends changing this anti-union bias, while at the same time restoring the role and coverage of minimum wages. This paper examines the arguments around these issues and concludes that neither side of the economic theory debate has delivered a knockout blow. The theoretical analysis is followed by a section looking at empirical evidence on the effects of deregulating labour markets. Again there is not complete consensus among the economics profession. However, both sides of the debate on the effects of labour market deregulation agree that strong minimum wage legislation does significantly reduce earnings inequality by increasing earnings at the bottom end of the distribution. The paper concludes that the increase in inequality consequent on labour market deregulation has adverse effects on the economy in the short run and disturbing longer run effects on society.

The contemporary growth regime has been ensured by the Australian state's mutations (at least until now)

Abstract: With the ascendancy of neoliberalism, the Australian state has not only remained strongly interventionist but has also expanded its sphere of influence and scope of activity. This is contrary to claims of a reduced, withered or slimmed neoliberal state. The Australian state's interventions have become increasingly varied in the overwhelming pursuit of structural competitiveness. It has developed an extensive ‘micro-structuring’ role, particularly through the creation of new regulatory instruments and institutions, but has not relinquished its economic ‘macro-structuring’ role notwithstanding changes to macroeconomic policy priorities. The Australian state's interventions have shaped all institutional forms comprising the mode of regulation that guides and supports the accumulation regime. This article discusses the reconfiguration of the Australian state and the forms of its ongoing interventions which have secured and sustained the contemporary growth regime.

A New Province for Women and Work

Abstract: Introduction The plenary papers provide rich reflections on Australian industrial relations Drawing on a wealth of experience, Gardner, Hancock, McCallum and Niland comprehensively cover the field of traditional industrial relations by examining those aspects that have engaged considerable scholarly attention since the 1950s: labour law; Commonwealth-State jurisdictions; wage policy; the role of tribunals; unions and industrial action In so doing, the plenary authors recognise that industrial relations regimes generally aim to balance employer-employee power, provide conditions that enable workers to support themselves and their families, and set a reasonable safety net to protect the weakest Gardner's reference to the 'martingale' and Niland's to the 'light on the horizon' remind us that, yet again, in 2008 we are at another turning point To make the most of the opportunity we need not only to adopt but move beyond the thinking that underpins the policy suggestions made by the plenary authors Now should be the time to change the boundaries of traditional industrial relations by taking much greater account of gender and speculating on what a renewed industrial relations system might look like Indeed, I and others have argued that such a re-conceptualisation is necessary if industrial relations is to remain a relevant field of study, practice and regulation (Forrest 1993; Pocock 1997; Baird 2003) To do this we need to understand the new context, problems and challenges we face, recognising, as do the plenary authors, that the historical conditions which set Australia on the arbitral path have altered considerably We should also move beyond thinking that 'globalisation' is the only aspect of the new environment to which industrial relations systems and institutions need to respond In fact, the more pressing concerns for the daily working lives of most Australians are at the domestic level--in their home lives and workplaces My focus is labour market discrimination and the gendered nature of work I argue that women's different participation in the labour market--both historically and relative to men--requires us to resolutely cast off the thought shackles of the male breadwinner model This gives rise to identifying the new problem which, is not the problem of strikes and the need to create 'a new province for law and order' The challenge is creating a new and agreeable province for women and work, and for more equitable gender relations We urgently need to address the barbarous tensions women face in combining their roles of reproduction and production Having identified this as the 'problem', my analysis turns to three areas that are symbolic of and central to industrial relations scholarship These are pay, hours and leave Each calls for new scrutiny through a gender lens The New Gender Context--Change and Inertia Labour force participation rates have steadily increased for women and steadily declined for men (1) Women now constitute 45 per cent of the Australian workforce and the main contribution to the overall increase in Australia's workforce participation in the last 15 to 20 years has come from women Furthermore, more mothers are now in the paid workforce than ever before Fifty per cent of women with children less than six years old are at work, as are nearly 70 per cent of women with children 6-14 years old (2) True, many are not full-time employees, but by way of contrast, in 1954, fewer than one in three women in Australia (29 per cent) was employed and just 7 per cent of married women were in the paid workforce Statistics for part-time work, now the significant feature of women's work, were not even gathered in 1954 (3) These are profound changes, impacting not only in the workplace but also in the home, in communities and on gender relations However, occurring at the same time as this rise in female labour market participation, and inseparable from it, are increasing domestic pressures …

An Employer Perspective

Abstract: I will attempt to put forward some personal views from the perspective of employers in response to some of the themes taken up by the very eminent panel of industrial intellectuals who have provided plenary papers. In trying to put forward representative approaches I am falling into the trap of appearing to treat employers as a homogeneous group. This is quite contrary to my own experience that employers come in all shapes and sizes and can have disparate views conditioned by specific industries, economic circumstances, geographic location, objectives, and a myriad of other considerations. What one does at all times in representing employers is to attempt to distill opinions and aims into a strategy that accommodates as much as possible of the stated requirements of those employers you represent. I will bear this in mind in this paper but without doubt there will be employers who would not agree with all of what I have to say. Professor Ron McCallum is a man of soaring intelligence and unique ability to analyse and anticipate the human condition in his chosen field of industrial law. He has probably contributed more to the understanding and teaching of industrial law than any previous Australian. It is therefore ironic that I must take him to task in respect of his primary statement of the ground-rules of industrial law. His first substantive statement is that he has always regarded the purpose of labour law to be to ensure that working men and women receive fair entitlements and conditions in return for their labour. This is a statement that one could accept in respect of earlier years of industrial law when many employers may have been all powerful and self serving. In modern times and in particular the twenty-first century, it has become necessary to qualify the purpose of labour law as stated by Professor McCallum by adding that the consideration for fair employment entitlements should not only be the labour provided by employees, but also it should require them to be fair in their treatment of their employer. We are in an environment of heavily regulated employment conditions that guarantee minimum entitlements over a wide range of matters through various legislative means. The scope of such obligatory employment benefits is very wide and the benefits received by workers are far superior to those of past years. There are employers who object strongly to this regulation just as there are workers who consider that such benefits are inadequate bearing in mind the perceived profits of employers. There are, however, many employers who welcome regulation as indicating what are fair standards to provide employees, and who want to know that they are providing the benefits to employees that should be universal. These are the same employers who are providing the means for workers to achieve a standard of living and security that would have amazed our grandparents. Accordingly employers in this era should be entitled to be treated fairly by their employees just as they are required to treat their employees fairly. Sadly, employers encounter a minority of workers who engage in practices such as using all sick leave entitlements as additional recreational leave, making false workers compensation claims, exploiting stress leave, refusing fair flexibility requests in performance of work, using false grounds as reasons for stoppages of work etc. These are complaints that need to be aired as the media and the public are all too quick to condemn employers at every opportunity, and to ignore the transgressions of workers. There are two particular areas where employers are entitled to fair treatment and those areas involve industrial action and unfair dismissal claims. The right to strike was a legitimate weapon in long gone days of employer autonomy. In the current time of highly regulated employment entitlements it is a primitive weapon that does not benefit either employer or employee. …

Labour Market Efficiency and Fairness: Agreements and the Independent Resolution of Difference

Abstract: It is now settled that we need to get beyond WorkChoices by Moving Forward with Fairness. But what does this mean? In particular, what does it mean if we are interested in improving efficiency, effectiveness and equity in the Australian labour market? As an election manifesto, the ALP's policy on labour law was, understandably, strong on rhetoric and light on detail. A paper this length cannot overcome the 'details' problem. Instead, it clarifies the key issue of institutional design that should guide the impending legislative changes. This is: facilitating dynamic agreement making supported by a strong system of independent resolution where agreement cannot be reached and which also sets national labour market standards. The argument is straight forward. Any effective system of labour law must engage with the two asymmetries at the heart of the employment relationship: inequality of bargaining power before a worker is hired and uncertainty of performance once they are engaged. The former favours the employer, the latter the worker. These inequalities change over time. Differences arising from these asymmetries underpin the need for ongoing agreement making. Not infrequently, however, agreement cannot be reached. While each of the plenary papers differed, all four agreed that, over the last century, Australia has devised a dynamic system for independently resolving such 'deadlock' situations. These tribunals have succeeded because they have kept most industrial or workplace relations issues out of parliament and the courts. This argument is developed by answering the following connected questions: * What are the fundamental problems any system of labour law must deal with? * What does the latest research on labour market arrangements and economic performance tell about institutional design? * What guidance do the plenary papers offer in moving the debate on labour law reform forward? * What do recent experiences with enterprise bargaining reveal about problems to avoid? The Fundamental Problem: Labour as a Factor Production Labour law was once regarded as an arcane area of interest to only a small group of specialists. In recent times, however, it has become a matter of intense public interest. If policy debate is to mature we must move beyond rhetorical claim and counter-claim. Instead, analysis must be built on clear conceptual foundations. These can be traced back to the distinctive nature of labour as a factor of production. As Brown and Nolan have noted, what underlies industrial or workplace relations 'is the inherently controversial nature of the employment transaction (Brown and Nolan 1988: 340). This arises from two asymmetries (Fox 1974: 190). The first arises from the inequality of bargaining power between the parties before the contract is made. While many employees have few options to them other than to sell their labour, employers are, generally speaking, not so constrained (Fox 1974: 190). The second asymmetry arises from the peculiar nature of labour as a commodity (Biernacki 1994). An employer hires a worker's potential to perform, not the actual performance of work itself. This inequality of uncertainty means that while workers are sure of their wages once hired, the output an employer receives is open-ended because only workers know how diligently they apply themselves on the job (Braverman 1974: 52-58; Fox 1974: 183-189; Brown and Nolan 1988: 340). For the sake of brevity, the first inequality will be referred to as the 'external inequality', and the second the 'internal inequality'. While the first tends to disadvantage the employee, the latter creates major problems for the employer. Labour law as a distinct realm of jurisprudence primarily emerged to redress the inequality of bargaining inherent in the open labour market. Initially this took the form of limited recognition for unions by granting them immunity from suit for civil and criminal conspiracy (Deakin and Wilkinson 2004: ch 4). …

Beyond WorkChoices: Negotiating a Moment

Abstract: Introduction Australian industrial relations was a curious beast for much of the twentieth century. For many it was the institutional equivalent of a marsupial--native to the Australian environment. It developed in the economic and social circumstances of the nineteenth century. Indeed the development and elaboration of the arbitral model of Australian industrial relations was one of the major social experiments of a vibrant, young and successful Australia. It was at the high point of centralised wage fixation and trade union influence in the 1980s that the arbitral model finally faltered. In the success of the Accords and the transformation of the Australian economy in this period lay the beginning of its end. The destruction of this arbitral model took its first legislative form in the Keating government's Industrial Relations Reform Act 1993. From that time, Australia has been in the throes of reshaping its industrial relations to meet the new economic and social circumstances that the final decade of the twentieth century ushered in. In policy terms, the martingale--the point at which policy may diverge from its previous path--occurred in 1993 with the Industrial Relations Reform Act. The major legislative changes the Howard government introduced in the Workplace Relations Act 1996 took advantage of the shift to a bargaining model enshrined in the Keating government's legislation to make subtle changes that would have had far-reaching consequences. Yet, before Australia could experience fully those effects, the unusual circumstances of an election in 2004 gave the Howard government control of the Senate as well as the House of Representatives. These circumstances led to a legislative change that has reopened the whole industrial relations system for review. The industrial relations regime introduced in the Industrial Relations Reform Act had its roots in a notion of liberal collectivism. In contrast, the changes made in the Workplace Relations Act 1996 were in fact the Trojan horse for the development of a much more market individualist system. Nonetheless, these changes were sufficiently masked by the usual slow-unfolding impact of legislative change and by the continuing operation of state industrial relations systems, particularly in NSW and Queensland. As a result, the diminution of collective representation and influence looked like a societal change not a legislatively-induced one. However, the Workplace Relations Amendment (WorkChoices) Act 2005 nailed its colours to the mast. WorkChoices, in concert with the interpretation of the Constitutional powers that gave the Howard government the opportunity to effectively remove state jurisdictional coverage, made the new system truly national not federal. It clearly instituted a market individualist system and in doing so provided the opportunity for the union movement to reveal to workers the consequences of this new industrial relations. Reinstitution and reinforcement of the asymmetric power of the employer was now visible and pervasive. WorkChoices rejected liberal collectivism and did so through complex and coercive national legislation. The voters replied in kind, repudiating that legislation in 2007 as comprehensively as they had repudiated the Industrial Peace Act when Prime Minister Stanley Bruce lost his seat in 1929. As a result, in 2008 the possibility of deliberate institutional change is now before us. Moreover there is room for real choice in the industrial relations system that we create through legislation. This is a 'Higgins moment' when we can lay down the base of a system that should serve for many decades. In this paper I want to consider what the possible choices are, including the constraints or circumstances that should be considered in making this choice. How should Australia set its new course for this twenty-first century? From Arbitration to Collective Bargaining It is important to put this reflection in context, since what we have witnessed in Australia in the years at the end of the twentieth and the beginning of the twenty-first century is a strange mirror of the debates a century earlier. …

Labour Standards, Safety Nets and Minimum Conditions

Abstract: One day in the 1990s, I found myself sitting in a hospital cafeteria with a group of people I had just met. We were eating cheese and tomato sandwiches, drinking terrible coffee and talking about work. The nurses in the group--midwives--were chatting about the challenges and rewards of shift work and delivering babies in their small Tasmanian town. About how scheduled shift times and the arrival of babies did not always mesh. I was in fact in the middle of one of the key processes by which the minimum standards for Australian workers have been fixed for about a century. The cafeteria group consisted of Commissioner Frawley of the Australian Industrial Relations Commission (AIRC), representatives of nurses and health workers unions (from the Tasmanian branch offices and in my case the union's national office in Melbourne), local shop stewards from within the hospital, midwives, senior nurse managers, hospital management and senior health service industrial relations officials. The Commissioner was 'on inspection': informing himself by direct interviews with workers and managers at their workplaces about the 'dispute' which unions had 'notified' to the AIRC under the then federal Act. The dispute was about the intention of Tasmanian public hospitals to overturn the existing practice that an eight hour shift was inclusive of a paid meal break, and introduce a new arrangement where shift times would be eight and a half hours long to permit an unpaid half hour break in the middle. Later in the week, most of us were back in the Court buildings in Hobart in a formal arbitration hearing before Commissioner Frawley. We lost our argument to retain the 'straight eights', and it was decided that nurses in Tasmania should work eight hour shifts spread over an eight and a half hours. Through his decision, Commissioner Frawley added another brick to the complex, multi-patterned edifice of labour standards, or minimum conditions, or safety net (the terms are really interchangeable) created through the processes of conciliation and arbitration. He had added to the Australian legal regulation of working time in ways which changed the working lives of those nurses and the ways in which the service they delivered was organised. The Commissioner's decision altered the overall cost of nursing labour in Tasmania (a net saving to the Government because the span of the working day was extended), and impacted upon the productivity of this sector of the workforce in ways yet to be measured. It goes without saying that the decision was unmarked by anyone outside those directly concerned, and like virtually all such similar (and much more significant) decisions on working conditions, unexamined in the literature. I have perhaps already breached Professor Hancock's stricture that nostalgia is not helpful. This personal anecdote frames my response to the plenary sessions because it highlights some of the important aspects of standard-setting in Australia. In my opinion, the best of what used to be remains an option for the future development of institutions and processes for setting standards in this country. Nothing is to be gained by starting from the premise that Australian labour law fits neatly within a traditional picture of labour regulation, as so often is assumed. This traditional picture derives from labour law discourse in the British tradition, which sees two distinct categories of such laws. First, there will be laws which structure and permit collective bargaining, so that unionised workers may meet employers with a measure of power and thereby shape their own working lives. Professor McCallum re-articulates the relevance of this vision of labour law for twenty-first century Australia. Secondly, where workers are too weakly organised, law should step in and determine the conditions which should apply in the absence of collective bargaining. This subsidiary 'regulatory' role for law (or legally binding instruments) is also recognised in all the plenary papers. …

Privatisation, Myopia and the Long-run Provision of Economic Infrastructure in Australia

Abstract: Introduction The onset of the global financial crisis in 2007 has been transmitted into the economy as a slowdown in consumption, investment, growth and employment in Australia. In this context, it is timely to revisit the validity of the arguments for privatisation and outline the impact of the extensive program that started in Australia in the 1980s, accelerated in the 1990s and still continues (Aulich and Wettenhall 2008: 57). It is important to assess whether the justifications for privatisation continue to have validity in terms of the outcomes of the policy. A key issue is whether new public infrastructure investment will extend policy horizons beyond short term market considerations; whether it will avoid some of the direct and regulatory costs of the previous policy and crucially, if it will lead to the injection of new investment with a long term benefit at a crucial time in the economic cycle, to help sustain employment and economic growth. This analysis will show how the program of privatisation changed the policy priorities of governments, from the long-term provision of public infrastructure to underpin development, to the short-term goals of the realisation of budget surpluses, the retirement of debt and the realisation of short-term efficiency gains in the delivery of services. Privatisation has been successful, to some extent, in achieving these short-term financial goals, but it has also increased the longer-term costs and also the complexity of regulatory supervision required in the establishment and administration of new quasi (managed) markets for public services. In the process, privatisation has entrenched new monopolies in the Australian economy and undermined the legitimacy and role of new public investment in infrastructure. Over twenty years have now elapsed since the start of the program of privatisation in Australia. The monetary impact of the program has been valued in terms of the sales of government business enterprises (GBEs) alone of $113b between 1990 and 2007 (Chester 2007). If other forms of privatisation like contracting-out of public services and the use of public/private partnerships are taken into account, the actual value is significantly higher than this amount (Aulich and Wettenhall 2008: 68). Other impacts of privatisation, such as its effects on the regulatory framework, pose important challenges to the maintenance of acceptable standards of governance, accountability and transparency in governments in Australia (Johnson 2007). These concerns are not only issues in the provision of infrastructure but extend far beyond it, to reflect the changing role of the state (Chester and Johnson 2006). To manage the effects of privatisations, successive governments have built an extensive, complex, costly new regulatory framework to govern entry and exits from new markets, investment and prices. The consequences have been mixed. They include the provision of some new services, regular government budget surpluses at both the State and Commonwealth level and a reduction of public debt. They also include an increase in private debt and a significant and growing under-supply of new infrastructure investment by both the public and private sector. It will be argued that this under-supply of infrastructure is generated by a myopia in policy making created by the process of privatisation. This is likely to become more important as governments urgently seek short-term domestic economic policy solutions through public investment in infrastructure, to the challenges of maintaining growth and development in Australia in the current economic environment. While there have been many academic studies, interest group papers and government reports advocating the major program of public sector infrastructure privatisation, studies evaluating the cost and longer-term effects have been much less common. The studies that have been undertaken (Wettenhall 1999; Privatisation, Myopia and the Long-run Provision of Economic Infrastructure in Australia 59 Walker and Walker 2000; Considine 2001; Collyer et al 2003) have provided important insights into the transaction costs of the privatisation program and the impact on services. …

WorkChoices and Independent Contractors: The Revolution That Never Happened

Abstract: The contributions that form the centrepiece of this special edition, from Margaret Gardner, Keith Hancock, John Niland and Ron McCallum, offer diverse insights both as to the policy debates that have shaped Australian workplace relations over the past 25 years, and as to the opportunities and challenges that now confront the Rudd Government. But one feature they share is that they have virtually nothing to say about the regulation of work performed outside the confines of the traditional employment relationship. Their focus is unremittingly on employers and employees. From one point of view, this might seem odd. The 'increasing scope of atypical employment arrangements' to which Margaret Gardner alludes has not just been about employees working part-time, or as casuals, or on fixed term contracts, or away from a traditional workplace. It includes a large number of workers who provide their personal labour as 'self-employed' contractors, rather than as employees in the common law sense (Productivity Commission 2006). There has also been a burgeoning awareness, at least in the labour law literature, of the regulatory challenges posed by forms of work that fall outside the conventional categories of employee and contractor, whether performed by volunteers, franchisees, social security recipients, prisoners, and so on (Gahan 2003; O'Donnell and Mitchell 2006). Yet the focus of the plenary papers is in another sense entirely justified. The progressive waves of reform that occurred in 1993, 1996 and 2005, as well as the Rudd Government's recently enacted 'transitional' legislation, (1) have all involved amendments to a federal statute whose application remains anchored to the common law conception of a contract of service. (2) Federal awards and workplace agreements can generally deal only with the terms on which employees are engaged. The growing list of minimum entitlements directly established by what is now the Workplace Relations Act 1996 (WR Act) likewise apply only for the benefit of employees. And while registered trade unions are permitted to have independent contractors or other non-employees as members, at least in certain circumstances, (3) the various rights granted to unions under the Act--to enter workplaces, to enforce compliance with industrial instruments, to organise protected industrial action, to appear in tribunal proceedings--have little application to those members. In the same vein, the public debates and advertising wars that surrounded the Howard Government's contentious 'WorkChoices' reforms were conducted almost entirely by reference to the position of employees. And in responding to those debates, the federal ALP's 'Forward with Fairness' policies were likewise framed in terms of restoring 'balance' to the treatment of employers and employees (Rudd and Gillard 2007a, 2007b). They have nothing at all to say about contractors or other non-employees. What Might Have Been But it could easily have been different. In the lead-up to the 2004 election, the Coalition promised to 'legislate to protect and enhance the freedom to contract and to encourage independent contracting as a wholly legitimate form of work' (Liberal and National Parties 2004: 3). For a time, it seemed that what John Howard had in mind was a two-pronged approach to labour market deregulation. Businesses who wanted to escape the 'rigidities' of the award system, not to mention the inconvenience of having to deal with unions, would be given a choice of how to do that. They might use statutory individual agreements to strip away award entitlements and block union representation, either with or without any compensating wage increase. Or, more radically, they might take a worker right outside the scope not just of the award system, but of the various minimum standards set by the WR Act for employees, by the simple expedient of hiring them under a contract that described them as self-employed. Whether or not that was the intent behind the 2004 policy, however, it is not what eventuated. …

Re-imagining the Role of Trade Unions after WorkChoices:

Abstract: No system where interests collide can proceed without a means to break deadlocks or redress major asymmetry of market power.--(Gardner 2008: 40) A focus on asymmetry of market power emerges as a central theme within three of the four plenary papers examining the future shape of Australia's federal industrial relations system. Gardner, Hancock and McCallum all affirm the inherent power imbalance existing in the common law employment contract as a continued justification for regulation in the arena of industrial relations. Yet, imbalance of power is not unique to the employment relationship, (2) a factor which has contributed to many commentators seeking a broader regulatory justification for intervention. (3) This approach is not incompatible with recognition of the existence and effect of power imbalance in the context of employment and the role of regulation in correcting power imbalance. It does, however, seek to establish a broader justificatory basis for the regulation of work, a project which may help the discipline of labour law move beyond the contract of employment as the locus of regulation. The rationale behind the impetus to extend the principles underpinning labour regulation clearly emerges in the acknowledgement made in each of the plenary papers of the declining role of trade unions and strike action within the modern federal industrial relations system. If collectivism is in decline, alternate methods of regulating the relationship of employees and employers should be adopted. This discussion will consider two of the central themes emerging from the plenary papers: power imbalance; and the impact of the shift in regulating trade unions as representatives of workers generally in favour of the regulation of trade unions as representatives or agents of individual union members. Gardner suggests that the causes of the declining influence of trade unions in Australia have been misrepresented as social rather than legal. Commenting on the impact of the amendments made to the federal legislation by the Keating Government in 1993 and the Howard Government in 1996, Gardner observes that 'the diminution of collective representation and influence looked like a societal change not a legislatively induced one'. The discussion will consider the ongoing role of trade unions and collective action within the Australian industrial relations framework in light of the history of industrial relations in Australia and the pessimistic assessment of the future of collective representation that emerges within some of the plenary papers. For example, Hancock argues that '[i]t may well be unrealistic to expect the unions to "turn around" the secular decline in their penetration of the work force'. However I believe this focus on the decline in union density is unhelpful in the Australian context. It is possible to imagine a rejuvenated role for trade unions as representatives of workers generally if we consider the role of unions in Australia within their historical context. In his plenary paper, McCallum reminds us of the origins of employment regulation and the transformation of the master and servant relationship from service to contract at the time of the industrial revolution. McCallum emphasises that the contractual relationship is characterised by command and obedience, wherein the employee submits to the control of the employer in return for payment. The underlying capital and managerial power of the employer is reinforced at common law by the terms of the contractual bargain which require the employee to obey lawful and reasonable commands, upon threat of summary termination. This emphasis on the contractual basis of the individual employment relationship serves to illustrate the inadequacy of the common law to redress the unequal position of an individual employee against the pre-existing capital power of the employer. It is also a useful tool for teaching students who have never studied industrial relations or labour law. …

Grasping the Moment: Some Cross-Tasman Thoughts on Australian Labour Law Reform:

Abstract: It is something of a poisoned chalice to be asked to comment on another country's labour law reforms. Even proffering such advice at home can lead to suggestions that one's opinion is lacking in credibility; a former Minister of Labour asserting that my 'assertions stray into the domain of the wild and erratic'. (1) Commenting on a system that has many similarities to one's own, and which until the last quarter of the twentieth century had largely the same legal structure, seems a straightforward task, but carries the risk that nuances may not be fully understood or be overlooked. Close similarities may mask quite different political and economic dynamics that may be misunderstood. The devil, as always, is in the detail. I began writing this comment on the twenty-fifth anniversary of the signing of the Australia-New Zealand Closer Economic Relations Free Trade Agreement (CER). Given the very high degree of trans-Tasman economic integration and the existence of an open trans-Tasman labour market, it is worth making the point that one area of law that has remained outside the CER harmonisation project has been labour law. The only exception has been reinforcing free movement of labour. (2) Implementing CER has required a high degree of legal and regulatory harmonisation, in turn dependent on a high level of policy congruence and mutual confidence in the other's regulatory and administrative systems. In this respect CER differs significantly from the European Union, where harmonisation of labour standards has been an important part of the integration program. The reasons for excluding labour regulation from CER are essentially pragmatic. There is no need to include it and every reason not to. Each country can have confidence that at the macro-level neither is disadvantaged by the mode of regulation in the other. Even though there may be no wish for joint regulation, there has long been and there remains a considerable exchange of ideas between the two countries. Each has adopted precedents from the other, beginning with compulsory arbitration. (3) A combination of this shared legal history and the fact that the external economic challenges facing the two countries are not dissimilar suggests that each country may continue to have something to learn from the labour law structures of the other. And, from that rather tenuous peg, I will attempt to hang at least some observations, partly based on New Zealand's experience of reforms since 1991, relevant to Australia's current opportunity for labour law and industrial relations reform. In this contribution to the debate on the Australian reforms, I intend to focus on the legal construct of the 'employee' in the early twenty-first century. The argument I would make is that any comprehensive reform must recognise that the law's definition of an 'employee' is limited and fails to recognise that employees have legitimate stakeholder expectations in their employment. The consequence of this failure is that the legal allocation of risk in employment relationships is biased against employees, the group that is least able to diversify and protect itself against economic risk. One solution to this problem may be the introduction of a broad statutory good faith obligation, the solution adopted in New Zealand in the Employment Relations Act 2000 (ERA). That solution is not without its difficulties, but it does offer one way forward. I do not intend to discuss the institutional structures and institutions that might evolve in Australia, an area where others are considerably more knowledgeable than I. Grasp the Opportunity Perhaps the first and most obvious comment is that opportunities for comprehensive labour law reform occur rarely, perhaps once in a generation. In New Zealand that opportunity occurred in 1991 when a National government enacted the Employment Contracts Act (ECA). (4) Australian experience over the last decade also makes it clear that opportunities for major reform are likely to be equally rare under its constitutional arrangements. …

Skills and Training: Reflections on a Recent British Contribution to Current Debates

Abstract: Grugulis, I. (2008) Skills, Training and Human Resource Management: A Critical Text. Palgrave Macmillan, UK. Introduction (1) The election of the Rudd Labor government will see Australia enter another period of change in its training system. As in the past, training 'reform' will be influenced by information about developments in the UK. This book by Professor Irena Grugulis, a well-known UK commentator on skills, is thus timely and should be of interest to Australian audiences. It seeks not only to describe the British experience, but to situate it internationally and in relation to the latest trends in the literature on skills, training and human resource management. The international literature on training policy tells us that an effective training regime requires a 'cooperative' approach, in which the major actors (employers, unions, governments and training authorities) work out an accommodation of sorts (Crouch et al 1999). Australia has never been able to achieve a stable 'social settlement' among the main political economic actors, and the past two decades have seen an acceleration of sometimes intense conflict over both industrial relations and training policy. Unions have been systematically and increasingly excluded from the system for the past 12 years. Accordingly, one of the tasks of the new Rudd government is to manage the terms of unions' reinclusion in a manner that neither 'frightens the horses', nor disappoints potentially inflated expectations. Employers have generally played a role in which the influence afforded to them by the state has not been matched by the wisdom of their policy proposals (Billet 2004). Aggravating matters, Australia has been reluctant to demand too much of employers with respect to training. Further aggravating matters, Australia is a federal structure, with the constitution assigning powers over training and qualifications to the States. This leads to problems of mutual recognition of qualifications, undermining the national consistency of both policy and qualifications that is the sine qua non of a national training system. 'Uncooperative federalism', in which the Commonwealth may seek to impose policies that the States resist, is an unwelcome characteristic. Taken together, these circumstances produce a level of 'indecisiveness' in training policy and reform. Despite successive waves of training reform, the core problems in the system, which go to the conceptualisation of 'skill' itself, have not been solved. I first introduce the book, then discuss in more detail the issues it addresses in relation to the problems of Australian training. These issues include the structure of the Australian political economy, and the conceptualisation and operationalisation of skill itself. i) The Book The book is in Palgrave Macmillan's Management, Work and Organisation series. It is written as a textbook, for specialist masters' and similar courses, not as a research text, and therefore it seeks to cover the field without expressly introducing 'cutting edge' concepts such as researchers would be seeking. The book signals a critical approach, yet it does not engage with any of the established 'conventional' texts on training, some of them in their third editions (eg Goldstein and Ford 2002; Laird et al 2003; Blanchard and Thacker 2008; Noe 2008). Thus it does not, as one might expect from the title, develop a critical perspective on the training processes--needs analysis, design, delivery, evaluation--that are still the bread and butter of the 'conventional' systems approach. Nor does it challenge the 'strategic training' perspective (the idea that training and development activity within firms should serve organisational interests only) which is the outcome of following the training approaches prescribed in the textbooks. The critical nature of the book lies in its Labour Process Theory (LPT) pedigree, and, whilst welcome, it is not directed at a critical evaluation of the mainstream training literature. …

Unfair Dismissal Cases

Abstract: A significant element in the new industrial regime proposed by the Rudd Labor government is the restoration, to most employees, of a right of action against their employer for unfair dismissal. Available remedies are intended to include orders for reinstatement of employment and payment of monetary compensation. By 'unfair dismissal', I mean dismissal that is harsh, unjust and unreasonable. The unreasonableness might be substantive; that is, there was no reasonable basis for the employer's decision to dismiss. It might be procedural: the employer made the dismissal decision without following a fair procedure, such as giving the employee an opportunity to know the nature of the employer's concern and to explain any allegation of misconduct. 'Unfair dismissal' is to be contrasted with a dismissal that is unlawful, because it infringes one of the special protections set out in the relevant legislation. Examples are dismissals that infringe prohibitions on racial or sexual discrimination or are based on the employee's membership of, or activities within, a trade union. Protection against unlawful dismissal was maintained under WorkChoices. However, so far as most employees were concerned, the practical effect of that legislation was the abolition of any right of action for unfair dismissal, a much commoner situation than unlawful dismissal. The Government's Proposal The proposal of the Rudd government is to provide a right of action for unfair dismissal to all employees, subject to a qualifying period. The right of action will not be available where the dismissal takes effect within the first six months of the person's employment; 12 months if the employer has fewer than 15 employees. Although it is not easy to see why the extent of the qualifying period should depend upon the size of the employer's workforce, the concept of a qualifying period makes sense. The concept recognises that an employer, and perhaps also the employee, may have made a poor decision in creating the employment relationship and therefore allows it readily to be terminated, during its early days. At that early point of time, it is less likely that the employee will have made significant commitments (personal or financial) on the strength of that relationship. The employee knows, or should know, that he or she is, in effect, on probation for the duration of the qualifying period. The Industrial Relations Court of Australia Experience During the period April 1994 to June 1997 inclusive, the Industrial Relations Court of Australia (IRCA), of which I was then Chief Justice, heard and determined the unfair dismissal claims that were brought pursuant to rights conferred by the Keating government's 1993 amendments to the Industrial Relations Act 1988, and which had resisted earlier attempts at settlement. In relation to each unfair dismissal claim, the Act required a mediation conference to be convened by a member of the Industrial Relations Commission (the Commission). In a majority of cases, an agreement resolving the claim was reached at that conference. The only cases that were passed back to the Court were those in which the Commission's mediation failed. Notwithstanding this, each year there were several hundred such cases. Mediation having already failed, in relation to those cases that were returned to the Court, it might have been thought a waste of effort for the Court to try it again. However, we did try and achieved a two-thirds success rate. This did not necessarily mean the Commission member had not tried hard enough. The effluxion of time often brings second thoughts. The unsettled cases went to trial, either before a judge or a judicial registrar. Respondents (the former employers) were usually represented by lawyers; applicants (the former employees) less often. The hearing of many cases occupied less than a day; more often two or three days, occasionally more. …

The NSW Green Paper Twenty Years On: A Reflection on the Future

Abstract: The 1989 Green Paper Transforming Industrial Relations in New South Wales, advanced 99 recommendations across a range of concerns. Some were quite prosaic, such as the scope for legal representation in tribunal proceedings and redrafting the regulations to the enabling legislation. Other measures, such as those to do with union amalgamations, OHS the Cawthorne Report (1982) for South Australia; the Hancock Report (1985) for the Federal system; the Marshall Report (1986) for Victoria; and the Hangar Report (1988) for Queensland. This should have come as no particular surprise, given where I had been in the collective bargaining versus compulsory arbitration debates among industrial relations academics in the 1960s and 1970s (Isaac 1979). For obvious reasons, editors do not ask authors to review their own books and perhaps the same should apply to the agents of public policy reviews! Be that as it may, I am pleased for the opportunity offered to reflect on the key elements in the Green Paper, and to link these, where relevant, to the current policy climate in Australia. This can be addressed through four of the main themes, each a building block for a lower centre of gravity. 1. An enterprise focus, by developing a framework of institutions, skills and practices to promote collective bargaining at a decentralised level, with minimal pattern setting. 2. An 'industrial calendar' which recognised the reality of the right to strike by allowing certain direct industrial action at particular times of the bargaining and agreement cycle. 3. A balancing of equity and flexibility by assigning to the tribunal responsibility for setting certain minima, and vetting non-union agreements before they can override awards. 4. A rationalisation and integration of the Federal and State systems of industrial regulation. Enterprise Bargaining The rationale for the emphasis on enterprise bargaining was to introduce a process more likely to produce better relations and productivity in a workplace by focussing on that workplace, away from the 'one size fits all' tendency characterised in the hallowed principle of comparative wage justice. …

Remaking Industrial Relations in Australia

Abstract: Following the 24 November 2007 Federal election, the Rudd Labor Government began work on its promises to re-shape Australia's industrial relations system. Industrial relations had been a central issue--many thought the central issue--in that electoral campaign. The Howard Liberal-National Coalition Government went to the polls some two years after enactment of its highly controversial Workplace Relations Amendment (WorkChoices) Act 2005. Despite the Howard Government's best efforts--via legislative amendment, enormous public spending on pro-WorkChoices advertising and the corralling of employer associations into publicity campaigns in defence of WorkChoices--the clear anti-employee bias of the new industrial relations regime rendered WorkChoices increasingly unpopular. It cost the Coalition the government benches, Howard his electoral seat and the Coalition parties their ability to commit themselves--at least in the short term--to the sorts of employer-focused, individualised industrial relations that they had championed for the previous two decades. The most potent symbol of this trend was the introduction (in 1996) of individual statutory agreements--Australian Workplace Agreements (AWAs)--to override awards and collective agreements. The 2005 WorkChoices amendments further encouraged employers to use AWAs to erode collectively bargained conditions, by allowing the making of AWAs without any 'no-disadvantage' test, and with fewer procedural requirements. A particularly effective media and community organising campaign by the union movement against WorkChoices had harnessed voter support for Labor's wider policy agenda in support of 'working families'. So unpopular was WorkChoices and so central was its unpopularity to Labor's successful electoral campaign, that the new government appears to have had no option but to engage with industrial relations legislative reform as an important, early part of its legislative agenda. These particular circumstances have opened up a series of questions of fundamental significance for the future of Australia's industrial relations, its institutions, labour market and society. Whatever the Rudd government finally decides (and what the parliament with its 'hung' senate finally allows) is of potentially immense historic importance. This moment comes after nearly two decades of employer association activism that has successfully influenced governments of both persuasions in favour of a national industrial relations system far more decentralised and much more focused on the wants of individual employers. During the last 11 years too, unions have faced marginalisation and de-legitimation through policy, law and official discourse. The not unexpected outcomes include an industrial relations reality that is far more individualised, unprotected and insecure for large sections of the workforce. In broad terms, these are some of the experiences and trends that the Australian electorate voted against. So, where will the legislative process go now? The Rudd Government's first step in dismantling aspects of the WorkChoices framework was the enactment of the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 (Transition Act). The Transition Act delivered on a promise to prohibit the making of new AWAs, however it did not deal with many other contentious matters, including unfair dismissal laws. Through the government's policy statements and other media releases, we know something--but by no means all--of what further changes the new government plans to make. Some aspects of WorkChoices, such as reliance on a legislated safety net of minimum employment conditions, will clearly stay; however, other matters are still open to consultation and debate among newly-formed consultative bodies as well as among traditional employer associations, trade unions and other lobby groups. In that context, it is timely to review the state of industrial relations law and policy in Australia. …

Symposium: Recent Developments in Regulation and Implications for Social Inclusion

Abstract: In the face of the international financial crisis, there is mounting disillusionment with the neoliberal ideology which has underpinned public policy over the last few decades. This has been reflected by the recent change of government in Australia and the result of the American Presidential election in November. In both cases, the public's disillusionment and dissatisfaction with the regulatory and social welfare policies of the previous governments were key reasons for change. The increasing withdrawal of the state from traditional economic roles in most Western countries, including Australia, left the space open to markets and market relations. This is despite the vital role played by the state in economic development. As Chester shows, this was particularly the case in Australia from the time of European settlement. This reinforces the appropriateness of this symposium which examines a number of issues related to developments in regulation and implications for social inclusion. Chester's paper serves as an apt introduction to the symposium. Using French regulation theory, it documents the changing nature of the Australian state with an increased reliance--most marked since the 1980s--on the virtues of the market and on reducing the size of the government sector. However, Chester argues that this entailed a change in the form of regulation to 'regulation-for-competition', rather than a decline in the degree of regulation. Indeed, 'regulation-for-competition' is intrusive and involves significant direct control of the market and its participants. The six papers that follow can be divided into two distinct groups. The first three address specific issues associated with the new 'regulation-for-competition', while the final three highlight the implications of regulatory change for social inclusion and exclusion. One example of 'regulation-for-competition' is the recent WorkChoices legislation which implemented significant changes to labour market regulation under the guise of achieving structural competitiveness. Nevile and Kriesler consider the basis of these changes in the light of reforms proposed by the Rudd government. A major feature of the WorkChoices legislation was the attack on collective bargaining, and the intentional reduction in unions' power to negotiate on behalf of workers. Theoretical economics provides no clear winners in the debate over the effects of 'more or less' regulation of wages, although the role unions can play in achieving social inclusion through greater income equality is highlighted. Nevile and Kriesler note that, in direct contrast to the removal of collective bargaining rights of employees, the Trade Practices Legislation Amendment Act 2006 allows small businesses to bargain collectively with big business. However, as Isaac points out, this can present serious problems if, for example, the small business is a provider of services, and is therefore 'effectively involved in the sale of labour'--the province of industrial relations regulation. …