Gordon Anderson and Michael Quinlan | The Changing Role of the State: Regulating Work in Australia and New Zealand 1788–2007 | Labour History, 95

The Changing Role of the State: Regulating Work in Australia and New Zealand 1788–2007

Gordon Anderson and Michael Quinlan^*

The state has played a conspicuous role in the history of labour in Australia and New Zealand both as a focus for struggles and where the labour movement achieved a degree of influence that garnered the interest of progressives in other countries. The state is a complex institution and its relationship to labour has been equally complex, especially when the differential impacts on particular groups, such as women, are considered. This article traces state regulation of work arrangements (broadly defined) in both countries over the period of European presence. Although there are significant similarities, a number of differences are identified. We also indicate how recent research and debate on the historiography of the state can provide new insights.

The Historiography of the State and Labour

The state occupies a central position in the history of labour in both Australia and New Zealand. Perhaps for this very reason it has often been treated incidentally in comparative labour histories of the two countries,¹ although this is less true of those studies focusing on the experience of women workers.² A comprehensive examination of the relationship of the state to the labour movement is no small undertaking because it must consider not only a complex array of laws but also the broader sphere of politics and policy-making, government departments and enforcement agencies (inspectorates and the police), courts and tribunals, as well as the impacts and responses of different groups of workers, including women, indigenous workers and those from minority groups.

Over the past two decades Australian and New Zealand labour historians have provided new insights into state/labour relations in number of areas, providing a basis for more informed comparisons. This includes studies of the experiences of women and indigenous workers under the arbitration system, struggles to improve occupational health and safety (OHS) laws and the industrial strategies of employers.³ Further, Martin and Patmore have undertaken major studies of government departments responsible for administering labour laws in New Zealand and industrial tribunal chiefs in New South Wales, respectively.⁴ To this we can add a rich, though far from exhaustive, analysis of arbitral records.⁵ The relationship of particular communities to the state has also attracted attention. While there is an expanding literature on struggles over OHS and workers' compensation in both countries, detailed examinations of legislative developments and patterns of enforcement in these areas remain rare.⁶ As we indicate below, even where court and other records do not survive, it is possible to construct databases that provide insights into the relationship between labour and the state.

Although laws affecting workers are one of more commonly explored areas of the relationship between the state and labour, detailed comparative studies of the evolution of labour legislation are relatively uncommon and even studies of particular countries often only deal with a relatively short timeframe and a narrow band of laws, leaving some areas (like assisted immigration) neglected or only researched in a fragmentary manner.⁷ Further, attempts to legislate, and the context surrounding this (such as a number of eight hour day bills introduced into colonies like Victoria and Queensland from the 1870s), have seldom been examined. As Table 1 demonstrates, there is a complex history of legislative activity in Australia and New Zealand during the nineteenth century even if we only consider master and servant laws and related laws such as those dealing with apprentices, European and non-European indentured workers and assisted immigrants. Hay and Craven's⁸ detailed examination of master and servant laws in the British Empire from 1562 to 1955 is an exception and exemplar, revealing broad patterns of legislative borrowing/imitation and usage, as well as the evolving and often problematic implementation of these laws – including various forms of worker resistance.

Table 1: Master and Servant and Related Laws Enacted in the Australian Colonies and New Zealand 1828–1900

	New South Wales	Queens-land	South Australia	Tasmania	Victoria	Western Australia	New Zealand
1828	m&s, app
1829	app(orp)
1832	app(orp)
1834	app(orp)
1837			m&s (disallow)	m&s (disallow) app(orp)
1838				app(orp)
1840	m&s			m&s, app(orp)		m&s (disallow)
1841			m&s			m&s
1842						m&s, app(orp)
1844	app		app(orp)			app(orp)
1845	m&s
1847	m&s		m&s
1848			app
1849			m&s
1850	app(orp)
1851	app(orp)
1852	a/imm		m&s	m&s	m&s
1854	a/imm			m&s, a/imm
1855	a/imm				m&s, a/imm
1856				m&s
1857	m&s
1861		m&s
1862		inlab
1863			m&s
1864					m&s, app
1865							m&s, app
1868		inlab				m&s
1870		wages			wages
1871						ablab	wages
1873						app, ablab
1874						inlab
1875							govt app
1876						a/imm
1877			m&s
1878			m&s
1879	wages, ablab		inlab
1880		inlab
1882		inlab, a/imm		app, m&s		m&s
1884		wages, a/imm ablab		m&s			m&s, workmen's wages
1885		inlab			wages
1886		inlab				m&s, ablab
1887				m&s		wages
1888	wages
1890					e&é, app
1891					e&é		truck act
1892		inlab				m&ap/s	wages
1893							m&s, workmen's wages
1894	app
1895							wages attachment
1896					e&é
1897	wages	inlab, ablab				inlab
1898			wages		wages	wages
1899						wages	wages-non pay wage protection
1900	wages			wages		wages

m&s	Master and Servant Act	inlab	Indentured non-European labour law
a/imm	Assisted Immigrants Act	ablab	Aboriginal labour law
app	Apprentices Act (or orphans)	wages	Contractors debts, truck and wages liens law
e&é	Employer and Employés Act	disallow	Disallowed by British Colonial Authorities

Sources: Australian Worker Organisation Database & Doug Hay/Paul Craven

The comparative relationship between the state and labour will depend on the basis of comparison both in terms of time period and the number or types of countries selected. Table 2 summarises the evolution of state regulation and social protection in developed and developing countries from the period of laissez-faire capitalism prior to significant social protection and collective regulation (1880), the highpoint of Keynesian post-war economics and welfare state (1970), and the recent neo-liberal ascendancy with a return to market-driven policies and weakening of social protection (2007). A critical but historically contingent feature relating to the state shared by virtually all countries was the trifurcation of work-related standards (minimum wages/industrial relations, occupational health and safety, and workers' compensation) into three separate regulatory regimes.⁹ As Table 2 indicates, comparison between developed countries in 1880 and developing countries in 2007 reveals striking parallels in terms of labour market conditions, the power of labour, health infrastructure, and social protection. Other historical parallels in relation to growth rates, economic instability, limited democratic institutions, and suppression of social unrest could be identified.

Table 2: Work, the State and Social Protection: Developed and Developing Countries 1880–2007

	Developed countries			Developing countries
	1880	1970	2007	2007
Employment security and contingent work	No regulated job security and substantial contingent work	Secure jobs norm (except women)/small contingent workforce	Decline in job security and growing contingent workforce	No regulated job security – large/growing informal sector
Minimum labour standard and union recognition/bargaining laws (wages and hours)	No minimum wage or hours laws (except children) & limited union recognition	Universal minimum wage and hours laws & union recognition & collective regulation	Minimum wage and hours laws – some erosion	No or ineffective minimum wage & hours laws, little collective regulation
Extent of union membership and collective bargaining	Union density low (<10%) and limited collective bargaining	Union density 25->50% and extensive collective bargaining	Substantial decline in union density and collective bargaining	Union density low, declining & limited collective regulation
Extent of vulnerable groups of workers	Extensive exploited vulnerable groups (women, immigrants, home-workers, young and homeless, old)	Still vulnerable groups (women, immigrants and home-workers) but more circumscribed	Vulnerable groups expand (women, home-workers, immigrants, old and young – child labour re-emerges)	Highly exploited vulnerable groups (children, women, immigrants, homeless, indentured labour)
Extent of occupational health and safety law	Limited OHS law (factories, mines) & poorly enforced	Expansionary revision of OHS laws initiated	Expanded OHS law but under indirect threat	Little OHS law & little enforced (& only in formal sector)
Extent of workers' compensation system	No workers' compensation system	Mandated workers' comp/injury insurance system	Workers' compensation /injury insurance – some erosion	Limited workers' compensation and only in formal sector)
Extent of public health infrastructure (water, hospitals, sewer etc)	Little public health infrastructure sewer, (hospitals, water)	Extended public health infrastructure/ health insurance	Public health infrastructure – some erosion	Little public health infrastructure or being cutback in ex socialist
Social security safety net (sickness, age and unemployment benefits	No age pension, social security, unemployment benefits	Age pension/social security, unemployment benefits	Age, disability and unemployment benefits – cutback	No age pension, social security, unemployment benefits
State activity in utilities, education and transport	Limited state involvement in education and transport	Wide government involvement in education, transport, utilities	Privatisation, competitive tendering and social capital erosion	Limited state activity except ex socialist & all subject to privatisation, & social capital erosion

Within the context just described, Australia and New Zealand clearly share the general features of developed countries and any assessment of differences must recognise this. Nonetheless, the two countries have an especially close relationship, based on a similar history of colonisation and shared cultural, political and economic values.¹⁰ This has been reinforced by long-term two-way movement of people, economic ties (formalised by the Australia–New Zealand Closer Economic Relations Free Trade Agreement or CER of 1983), common traditions of public administration, policy congruence and growing efforts to harmonise regulation (including child support, social security, health and food standards). As yet the latter has had less effect on labour market regulation apart from small steps to harmonise occupational health and safety.

Comparing countries sharing many features can help identify critical factors shaping the history of labour, including differences with regard to the state. This is well illustrated by Robin Archer's recent analysis of why there is no Labor party in the USA, which relies on a detailed comparison with Australia. One of Archer's key findings is that the different position occupied by courts in the USA and the use of courts to attack new unions – the vehicle for broadening labour mobilisation – during the 1880s (when these unions grew strongly in Australia) was a critical impediment to the formation of a Labor party in the USA.¹¹ His explanation is consistent with why the labour movement in Australia and New Zealand opted for compulsory arbitration – albeit while taking steps to minimise its potential risks – but the American labour movement did not (the state of Kansas introduced a scheme before it was struck down).¹²

The last observation indirectly raises another critical point, namely that Australia and New Zealand pioneered a number of measures relating to labour and social protection more generally (such as mandating maximum working hours and minimum wages) in the late nineteenth and early twentieth centuries and were consequently seen as a model for progressives elsewhere, including the UK and more especially the USA.¹³ The effectiveness of these measures was influential although, as this article will note, over the last 25 years the foundations of this progressivism were weakened, coinciding with the rise of neo-liberalism.

This article aims to overview and analyse government regulation of work arrangements in each country over three main periods: the pre-arbitration era; the arbitration era, when legal structures were essentially similar in both countries; and the period after about 1970 when the two countries appeared to diverge. We will also point to instances where research has provided new insights into the role of the state, including evidence on evolving union activities and attitudes.

The Pre-Arbitral Colonial Period 1788-c1890

Australia and New Zealand share a similar but not identical colonial legacy. When New Zealand became part of the British Empire in 1840, following the signing of the Treaty of Waitangi, Australia had been settled for half a century. Formed as a free settlement, significant immigration did not occur in New Zealand until the 1860s and 1870s. Responsible government was not introduced until 1856, and until the 1870s the government's primary focus was first on military matters associated with the New Zealand wars and later on developing a national infrastructure. Labour law had little profile and attracted little interest in the legislature until the mid-1890s (see Table 1).¹⁴

In contrast, colonisation in Australia began as a series of convict settlements that evolved into independent colonies followed by the establishment of free settler colonies in Western Australia and South Australia. In the period 1788–1827 convicts (in the service of the state or assigned to private employers) and ex-convicts with a probationary ticket of leave, dominated the labour market. However, a progressive shift to free labour accelerated with the ending of convict transportation to eastern Australia (1840, and 1852 in the case of Tasmania) and population increases during the 1850s and 1860s following the discovery of gold and increased use of assisted (European) immigration. Sporadic employer efforts to introduce indentured workers from Asia were not encouraged by colonial authorities or British administrators who saw the colonies as a preserve for European settlement.¹⁵

In Australia the composition of the labour market encouraged regulation from an early period. Initially control was vested with governors who issued directives on wages and hours for both convicts and free harvest labour and seamen. The magistracy, vested with broad powers, relied on English master and servant law (illegally as it was later held) in deciding cases involving free workers.¹⁶ Individual colonies introduced their own often distinctive versions of English master and servant laws and (with the exception of specific groups like seamen and Pacific Islanders used in the sugar cane industry) these laws remained the dominant form of employment regulation throughout the nineteenth century.¹⁷ These laws were lopsided and designed to assert employer authority but from the late 1830s this was increasingly contested by workers politically, industrially and before the courts (after 1850 worker actions for unpaid wages formed the majority of court actions under the legislation).¹⁸

Labour in New Zealand was regulated by the English Master and Servants Act of 1823 but in practice the law had no significant role prior to the 1870s and more realistically the 1890s. Economic conditions favoured employers but even if employers had wished to utilise legal remedies, the state of the justice system in the early years of New Zealand's history seems to have been such that recourse to it may have been pointless.¹⁹

In Australia union formation began in the 1820s, some decades earlier than New Zealand. By 1850 over 100 unions, mostly short-lived, had been formed although a substantial level of informal collective action must also be taken into account. There is evidence of employers using master and servant laws against worker combinations but this affected few unions or their members. The Australian Worker Organisation Database indicates that attempts to repress organisation peaked in the 1830s and 1840s and was directed at informal organisations of workers rather than trade unions. In the early 1890s mass gaoling briefly revived, targeting unionists involved in strikes by shearers, maritime workers and others.²⁰

Rising union organisation, especially after 1880, saw the introduction of laws protecting the wages of workers engaged by contracts, the first OHS laws (in mining then factories and construction) and employer liability laws. These laws were based on British models (as was also the case in New Zealand) but also drew on local influences. In Australia the imperative for reform was more immediate given earlier industrialisation and worker organisation. Victoria pioneered factory legislation, directed at female workers, in 1873 and expanded in 1885 following the tailoresses strike and a campaign by shop employees. Tasmania followed in the 1880s and Queensland and New South Wales in 1896. Specific incidents also shaped legislation. New South Wales expanded its coal mining law (first enacted in 1854) following the Bulli mine disaster in 1887 and both Tasmania and Queensland reshaped their laws following mining disasters in the early twentieth century.²¹

Measures to address disease/health lagged those directed at safety as did moves to provide compensation to injured workers. Unions, particularly those in high-risk industries such as mining, retained their own doctors and provided accident insurance to members.²² Several colonies followed Britain by introducing employer's liability legislation but access was restricted, benefit levels were low and some employers abused the system by manipulating eligibility, deducting accident insurance from wages or pressuring workers to sign away their rights.²³ As a result, unions concentrated their efforts on securing a comprehensive no-fault workers' compensation system along the lines pioneered in Germany and adopted in Britain in 1897, a prolonged struggle not concluded until the first decades of the twentieth century.

A major union goal in both Australia and New Zealand was the eight hour day, with Sydney building tradesmen securing an eight hour day in 1855 and Melbourne stonemasons a year later. However bodies like the Victorian Eight Hours League (1858)²⁴ and the National Short Hours League (1869)²⁵ failed in their effort to secure legislation that would broaden and cement these gains.²⁶ In the period to 1890 the eight hour day campaign largely relied on collective negotiation. Despite repeated attempts, legal enactment was not finally secured until award determinations made in the early twentieth century.

Table 3 illustrates the range and changing nature of union objectives over the pre-arbitration period, many of which had a regulatory dimension (such as safety and health and jobs/employment). Interest in arbitration had been growing prior to the 1890s strikes. Further, as Tables 3 and 4 demonstrates interest in political/regulatory measures and industrial action cannot be seen as simple alternatives – many unions pursued both depending on the issue, timing or context. Table 4 shows that growing levels of collective organisation led to more not less political activity (petitions and deputations) and while there was an overall decline in court activity it remained significant.

Table 3: Australian Union Objectives 1801–1900 by period when union established; by number of unions to pursue this issue and (overall ranking)

Issue/aim	1801–50	1851–80	1881–90	1891–1900
Wages	113 (2)	218 (1)	255 (2)	356 (1)
Hours	20 (6)	198 (2)	301 (1)	247 (2)
Unionism	5 (9)	22 (9)	153 (3)	125 (5)
Apprentices	9 (8)	24 (8)	55 (8)	54 (7)
Working conditions	120 (1)	80 (3)	61 (7)	91 (5)
Management	17 (7)	4 (12)	9 (12)	19 (12)
Subcontracting	5 (9)	26 (7)	38 (10)	39 (10)
Health and Safety	71 (3)	76 (4)	130 (4)	136 (4)
Jobs/employment	39 (5)	68 (5)	123 (5)	154 (3)
Racial exclusion	1 (11)	16 (10)	46 (9)	42 (9)
Friendly benefits	50 (4)	56 (6)	107 (6)	90 (6)
Conciliation and arbitration	0	11 (11)	31 (11)	48 (8)
Gender	0	2 (13)	10 (13)	9 (13)

Source: Australian Worker Organisation Database – see endnotes

Table 4: Australian Union Organisation, Methods and Activities 1801–1900

Methods/activities	1801–50	1851–80	1881–90	1891–1900
Unions formed/extant	562	762	1105	1022
Average Union Duration (days)	180	1087	1671	1795
Strikes	302	293	428	331
Non-strike collective action (includes bans, demonstrations)	219	388	1063	786
Court actions (by and against collective groups of workers)	376	220	196	198
Petitions to government	54	68	153	125
Deputations to government	5	71	237	228
Conciliation or arbitration of dispute	0	1	32	24

Source: Australian Worker Organisation Database – see endnotes

In New Zealand the first legislative initiative was a Master and Apprentice Act in 1865. The Employment of Females Act 1873 (based on an Act passed earlier that year in Victoria) 'represented a principle of State intervention which might at that time have proved highly contentious to a more industrially minded community'.²⁷ The Act, which limited hours of work for females employed in 'workrooms', was amended several times and extended to young persons generally. Other legislation, based largely on overseas precedents, included the Trade Union Act 1878 and the Employers Liability Act 1882, the latter allowing injured workers to claim compensation for work-related injuries caused by the negligence of fellow-workers or the employer's operation.

While legislative developments in New Zealand and Australia followed a similar trajectory, evidence indicates this was the result of mutual borrowing from Britain rather than interchanges across the Tasman.²⁸ A notable exception was laws regulating shop trading hours where both countries took a pioneering role ahead of Britain. Repeated failures to achieve voluntary agreements between shopworkers and retailers led to pressure for legislation and in 1885 the world's first law mandating early closing of retail establishments was enacted in Victoria. This set the scene for similar laws and a mutually reinforcing set of borrowing between the Australian colonies/states and New Zealand.²⁹ When the standard-setting and enforcement provisions of the 1885 Victoria Act failed the improved provisions in the Victorian Factories and Shops Act of 1896 drew on New Zealand laws enacted between 1891 and 1895.³⁰ In 1895 JA Stacey, secretary of the Early Closing Association, told a House of Commons committee that 50 years of struggle and the expenditure of £100,000 had yielded little while Victoria, New South Wales and New Zealand already had 'more drastic legislation' than the 1895 Shops (Early Closing) Bill which subsequently failed to be passed.³¹

While most early legislation focused on particular issues or groups of workers it reflected an increasing concern with labour issues, broadening of the franchise and greater union influence both on and in the legislature. At the same time, neither adopted important British developments of the 1870s when the master and servant acts were repealed and criminal conspiracy, as it applied to trade disputes, was abolished to establish the foundations of collective industrial law. The antipodean response to collective action was delayed but more dramatic. Both Australia and New Zealand abandoned the British path to forge a distinctive model – compulsory arbitration – which was to govern industrial relations for the next three-quarters of a century.

The Arbitration Era

The period 1896 to 1926 witnessed the expansion of OHS laws in both countries covering factories and shops, construction, machinery and mines along the lines already described as well as laws providing for the compensation of injured workers. Again, both countries drew on British models (and continued to do so with the introduction of post-Robens OHS laws in the 1980s). However, limited research indicates the development and implementation of these laws were also strongly shaped by local events (such struggles against dust disease by Broken Hill and other miners in the early twentieth century).³² Although central to understanding the regulation of work, for reasons of space we will concentrate on industrial relations regulation – the area where Australia and New Zealand were viewed as conspicuous innovators.

The Introduction of Arbitration 1890–1916

Unlike New Zealand, the introduction of compulsory arbitration in Australia was the outcome of a prolonged community and political campaign extending over 20 years. Australia had a history of political mobilisation by unions to secure objectives through regulation complimented by efforts to bargain collectively with employers. Table 3 illustrates the increasing importance given to securing wages boards, conciliation or arbitration in the final decade of the nineteenth century. The capacity of organised labour to mobilise votes and elect its own representatives grew in the second half of the nineteenth century, leading to the establishment of Trades Hall electoral leagues and ultimately the Australian Labor Party. A short-lived minority government in Queensland in 1899 might be claimed as the first Labo(u)r government in the world. More importantly Labor won office federally in 1904 and by the first decades of the twentieth century had secured extended terms of government at both state and federal level. In New Zealand the election of a coalition Liberal-Labour Government in 1891 made reforming legislation possible, culminating in the Industrial Conciliation and Arbitration Act 1894 (NZ).

The immediate catalyst for arbitration in both countries was the severe industrial defeats experienced by unions in the early 1890s. This caused labour to turn to political remedies bolstered by elements of the middle class disturbed by violent confrontations and intransigence illustrated by events such as the 1890 maritime strike which started in Australia and spread to New Zealand. Nonetheless, the shift to arbitration must be seen in a broader context. The events of the 1890s were not entirely unheralded and there were also wider concerns (drawing in unions, religious and community groups, middle-class reformers and feminists) that existing laws failed to provide sustainable let alone fair conditions to less organised workers, including female outworkers. In both Australia and New Zealand broadly based anti-sweating campaigns played a significant role in engendering support for arbitration. In New Zealand the report of the Sweating Commission in 1890 raised public consciousness of the sub-standard conditions in which large numbers of workers were employed and of the intractable nature of employers in refusing to remedy these conditions.³³

Accepting this context, avoiding open class warfare was a primary goal. Pember Reeves, architect of the New Zealand Act, stated the what 'the Act was primarily passed to do was to put an end to the larger and more dangerous class of strikes and lockouts and this it is has done'³⁴ and Holt supports this aspect of Reeves' account.³⁵ The role of Pember Reeves in New Zealand and Kingston in Australia should also be noted. Holt argues that without Reeves' influence the New Zealand government would probably have abandoned its Bill after successive defeats in the Legislative Council. Reeve's Act however owes a particular debt to Kingston's 1890 comprehensive South Australian Bill which was enacted in a considerably emasculated form. Reeves 1894 pioneering Act in turn fed back into the Western Australia Act of 1900, the NSW Act in 1901 and eventually the federal Conciliation and Arbitration Act 1904 (Cth).³⁶

While protective measures initially targeted the most vulnerable, coverage soon spread. By 1907 the minimum wage and tribunal system was sufficiently well established to be recommended as a model for minimum wage setting in Britain by a House of Commons inquiry. As noted earlier, the Antipodes was also viewed as a progressive social laboratory of state regulation elsewhere in Europe and North America.³⁷ In retrospect both governments and unions almost certainly underestimated the momentum compulsory arbitration would gather once in force. Holt's comment can be applied to both Australia and New Zealand:

None of this [the arbitration system in 1901] could have happened without Reeves' Act and in this sense Reeves' experiment was a success, but it was the kind of success achieved by the hunter who went out seeking wild boar and came back proudly bearing a stag.³⁸

Consolidation of the Arbitral Model

In New Zealand the arbitration system had stabilised legislatively by 1908 and consolidated politically by 1914. In Australia consolidation was somewhat slower, especially at the federal level. In both countries the system was subject to challenge in its early years. As noted by Holt, the New Zealand system faced strong opposition from various groups, especially farmers and some employers, but became embedded before facing major challenges when unions resorted to strikes in the mid-1900s and 1912. The Arbitration system was able to meet and defeat political and industrial opposition and by 1914 was secure.³⁹ Three factors were crucial to this outcome.

First, reforms to the conciliation process in 1908, notably compulsory pre-arbitration conciliation, encouraged unanimous recommendations by persons active in the industry and thus ensured party 'buy-in' to the final award be it a consent award or a partially agreed award. As a result the Court was less heavily involved in the determination of individual disputes and free to develop a more general supervisory role. The Act was amended rarely thereafter, usually in response to particular economic conditions. The most important challenge came in 1932 with the abolition of compulsory arbitration as a response to the depression. Compulsory arbitration was restored in 1936 reinforced by compulsory union membership and legislated blanket coverage of awards.

Second, in large measure the arbitration system survived because of the Court's political acumen.⁴⁰ It generally adopted a gradualist and conservative stance while providing a moderately egalitarian wage structure for workers. The Court provided an important conduit through which governments could influence the economic management of the labour market. By setting the parameters to the Court's jurisdiction in relation to its determination of wages and conditions governments could influence determinations particularly when economic circumstances were difficult. In particular, General Wage Orders which increased (or decreased) all award rates simultaneously required legislative authority and thus government control over the terms under which it could be exercised. Over time, governments set increasingly detailed criteria for the exercise of such powers but the delegation allowed flexibility in the application of policies and to some degree removed the government from blame arising from defects in implementation. The central plank was the 'family wage' supplemented by Standard Wage Pronouncements which set margins for rates between skilled, semi-skilled and unskilled workers. According to Woods the

function of the conciliation machinery had settled down comfortably to that of reaching agreements broadly within the ambit set by the Court. Decisions involving any change of substance were left to the Court.⁴¹

Third, another consolidating factor was a realisation of the role the Act could play in averting serious industrial conflict. In the Blackball Miners case in 1908, Sim J had written that 'An arbitration system that does not prevent strikes is a failure and cannot survive'.⁴² Events between 1908 and 1914 led to a major revision of attitudes. The widespread Wahi and waterfront strikes of 1912–13 demonstrated that the state could use the Act as a potent weapon against striking workers who were not members of a registered union and thus free to strike. Registered unions monopoly access to conciliation and arbitration and awards binding both members and non-members meant a non-registered union was unlikely to survive long. This technique was even more effective in the 1951 waterfront dispute when union membership had become compulsory and the government had legislated to deregister recalcitrant unions. Once a 'strike free' New Zealand was recognised as an unrealisable utopia strikes were tolerated and penalties were not usually imposed so long as strikes remained at an acceptable level. However, direct threats to the arbitration system were not tolerated. On the two occasions this occurred (1912–13 and 1951) government deployed its full resources, including police and public order powers, to defeat militant unionists.⁴³

Notwithstanding Australia's complex federal political structure there was considerable uniformity in the evolution of labour regulation. State and federal systems survived several challenges. Two serious challenges were mounted federally from conservative quarters – the 1919 Industrial Peace Act of ex-Labor renegade William Morris Hughes and an attempt to destroy the system a decade later by Stanley Melbourne Bruce. Bruce became the first prime minister to lose his seat in an election, a situation that remained unique until the defeat of John Howard in strikingly similar circumstances of an election fought on industrial relations issues in 2007. As in New Zealand the system was also criticised by militant unionists. Those affiliated to the Communist Party of Australia labelled it a 'bosses court' when a ten per cent wage cut was imposed during the Great Depression. Craft unions believed they could do better under direct bargaining resulting in the Engineers' challenge of 1956, and others resorted to strike action leading to the imposition of penalties culminating in the gaoling of Tramways Union official Clarrie O'Shea in 1969. As in New Zealand the federal system rode out these challenges and strengthened its importance relative to state systems, although the latter remained important especially in states like Queensland.

The Arbitration Model

The Australasian arbitral model shared a number of critical features. These features differentiated it from the voluntarist Anglo-North American model of collective bargaining in seven key respects.

First, independent semi-judicial tribunals were used to set legally enforceable minimum labour standards through a combination of combination of conciliation, arbitration and direct negotiation. Tribunal determinations established an array of minimum labour standards beyond wages including hours of work, shift rosters, breaks, meal and other allowances – a wider array of standards than those legislated in most other countries. By the 1970s even a simple award would contain 60 or more conditions. In New Zealand and the states there were also legislated entitlements, notably in relation to leave.

Second, the arbitration system gave legal recognition to registered unions, enabling them to represent union and non-union workers covered by their membership rules. Union officers were given wide right of entry powers to speak to workers and monitor compliance with award conditions in workplaces they covered (even where there were no members). The access and enforcement implications of this should not be understated when compared to countries like the USA. However, as agents of the system, unions – their objectives, governance and internal affairs – were also subject to close regulatory control.

Third, compulsory elements of the system provided a powerful incentive for employers to recognise unions because tribunals could intervene and make determinations even if an employer refused to bargain. As a result, prolonged recognition struggles were exceptional unlike in countries such as the USA.

Fourth, the system explicitly encouraged collective representation amongst employers and employees, reinforced by preference provisions for union members, the absence of mechanisms for dealing with individuals (until the unfair dismissal protections of the 1970s) and the key role played by employer organisations.⁴⁴ The co-operative association that grew between representatives of employers, unions and the tribunals was strongly criticised by the neo-liberal 'new right' in the 1970s.

Fifth, awards spread to cover the vast bulk of the employed workforce by the 1970s. In Australia most manual workers were covered by the 1920s and even professional workers by the 1970s. In New Zealand a significant growth in clerical/administrative cover occurred from the late 1930s after compulsory unionism was introduced and 'blanket coverage' given statutory force. Awards were established on an industry or occupational basis though some applied to particular employers, commonly the case with regard to public sector employers in Australia. In New Zealand the public sector operated under a different legislative regime until 1988.⁴⁵

Sixth, unlike compulsory arbitration in some other countries the tribunal system did not preclude direct bargaining between the parties so long as agreements did not undercut award conditions. Direct bargaining was more prevalent in periods of prosperity such as the 1950s and 1960s.

Seventh and finally, the award system had important features in terms of enforcement. While numbering in the hundreds, awards still represented readily identifiable and publicly accessible documents (made easier by the relationship between awards resulting from test case decisions and flow ons). Importantly, award conditions were enforced by an industrial relations inspectorate that could independently detect and prosecute breaches before a specialist tribunal with more effective powers than a civil court. Unions also played a critical role in detecting non-compliance, and restitution could normally be made without recourse to court action.

These critical and distinctive features of the Australasian arbitral model – namely the wide array of mandated minimum labour standards and workforce coverage, the focus on collectivism and ease of enforcement – received little recognition from labour historians until they were targeted by neo-liberal 'reformers' in the 1980s.

Until the last 20 years of the twentieth century the system had managed to build a broad coalition of community support and, notwithstanding periodic challenges, proved sufficiently flexible to meet the disparate needs of government, employers, unions and workers.⁴⁶ Within two countries with highly protected domestic economies and prosperity maintained by commodity exports, the system worked well to deliver a measure of social justice and maintain industrial peace without unacceptable economic consequences. When both economies were opened to greater external competition in the 1970s and neo-liberal ideas progressively displaced Keynesian policies, arbitration became one of the casualties. Nonetheless, the circumstances and responses of Australia and New Zealand were more disparate.

1970 Onwards: Diverging Paths?

From the 1970s there was an increasing divergence in the regulatory structures in the two countries. The growing power of employers – coincident with business practices (downsizing/restructuring, outsourcing and use of temporary workers) that fractured the labour market, eroded working conditions and weakened unions – and an emerging neo-liberal ascendancy in policy making translated into an assault on the arbitral model in both Australia and New Zealand.⁴⁷ However, political and legislative responses varied significantly, resulting in different legislative models. In Australia, the federal Work Choices legislation (2005) reinforced an already prescriptive and interventionist model whereby the government sought to regulate in detail not only the negotiating framework but the range of permissible bargaining. Government agencies were also given extensive powers to intervene in day to day industrial relations. In New Zealand, by contrast, laws enacted in 1987 and 1991 created a contractual architecture with the government leaving the parties to reach settlements. Few restrictions were placed on the content of agreements and there was no power for either government or its agencies to intervene in disputes except at the behest of the parties. One manifestation of the difference was the sheer volume of legal text. The Employment Relations Act (ERA) contained about 200 pages compared to around 1,500 pages for Work Choices and supporting regulations.⁴⁸

New Zealand

In New Zealand what occurred was punctuated progression towards a new model of labour law. The neo-liberal inspired Employment Contracts Act (ECA) was unitarist but pragmatically retained some pluralist elements. In 2000 these pluralist elements were rebuilt by the ERA on the ECA framework. This model gained broad political consensus, suggesting radical reform of its core elements is unlikely in the immediate future.⁴⁹

The marginalisation of arbitration in New Zealand began in 1968 when the Court of Arbitration declined to grant a general wage adjustment to compensate for the impact of inflation. Reforms relating to bargaining in the Industrial Relations Act 1973 (NZ) were never fully implemented as the decade was dominated by direct government intervention in wage fixing system. Between 1971 and 1984, mandatory wage controls were in force for almost nine years with only eight months providing what could be legitimately described as free wage bargaining.⁵⁰ The anti-union views of the Muldoon National Government meant there was minimal union input or tripartite consensus with regard to these income policies. This helps to explain the abandonment of arbitration by the parties, including unions. One feature of the 1973 Act that did exert a long-term influence (up to the present) was the introduction of specialised procedures to resolve disputes of rights, particularly unjustified dismissals through a broad personal grievance process. By 1991 these provisions had become entrenched so that this aspect of employment law dropped below the reform radar.

In 1984 a Labour government was elected imbued with a neo-liberal philosophy and committed to restructuring the country's economic and institutional landscape, including labour laws that entailed a fundamental if gradual shift from arbitration. Compulsory arbitration was repealed in 1984 on the basis of a tripartite consensus. The Labour Relations Act 1987 (NZ) encouraged a shift towards enterprise bargaining while retaining the existing award system including detailed prescription of terms and conditions in awards. Two far reaching reforms were the repeal of the 'industrial matters' limit to the scope of negotiations leaving the parties free to determine this, and the introduction of a clear definition of a lawful strike thus establishing a protected and largely unqualified right to strike during a period of collective bargaining.

Labour's reforms also marked a return to the policy of the state setting parameters within which the parties could bargain and largely avoiding involvement in day to day industrial relations. The epithet of 'sideline Stan' applied to the then Minister of Labour reflected a return to the government approach that had dominated New Zealand's history apart from the aberrant interventionism of the Muldoon era.

The ECA marked a more radical reform. From a trans-Tasman comparative perspective the ECA's most important feature was that it swept away most remaining traces of the arbitration system and this marks a clear divergence from the evolution of state and federal labour law in Australia where arbitration remained part of the architecture. After a decade in force the ECA, not the arbitration system, provided the platform for Labour's 2000 reforms.⁵¹ Compared to Work Choices, the ECA represented a move towards the neo-liberal ideal of a laissez-faire market driven system regulated almost entirely by common law. Despite pragmatic political compromises there was a high degree of structural simplicity and, at least among its supporters, a mythology of neutrality between individual and collective determination of employment conditions because the legislation allowed either outcome.

Stripped of the rhetoric of choice, a major aim was to de-unionise and individualise employment relations and two policy levers were used to achieve this. First, terms and conditions of employment were determined only by a collective or individual contract. Industrial action was only permitted in the course of negotiating a collective contract and was confined to only those employees who would become parties to a single-employer collective contract. Beyond this however the Act did not regulate the negotiating process or the content of collective contracts beyond consistency with statutory minimum code provisions. Nor did the Act provide provision for government intervention during a lawful strike apart from 14 days notice in the case of essential industries. The second lever was treating unions as merely one possible form of worker representation by making them legally invisible. Controls over the establishment, recognition and internal affairs of unions under the Labour Relations Act were repealed. Union legal status became that of an incorporated society under the Incorporated Societies Act 1908 (NZ). Further, compulsory union membership was abolished, leading to the collapse of a number of major unions, and there was a strict policy of enterprise confinement of collective bargaining.

However, as noted above, procedures relating to personal grievance rights (including unfair dismissal and harassment/discrimination at work) introduced in 1973 were largely unaffected by the reforms. Indeed, unlike Work Choices these rights not only remained in place but were extended to cover all employees irrespective of enterprise size or period of employment. The reforms also left untouched the statutory minimum code provided though acts such as the Minimum Wage Act and the Holidays Act (providing for annual, statutory and sick leave).

Labour's reforms in the Employment Relations Act 2000 (NZ) marked a return to pluralistic principles, including the promotion of collective bargaining. However the degree of structural change was limited as was its impact on union density and bargaining. This is highlighted by changes affecting the two ECA policy levers described above.⁵² First, while the Act reinstituted collective bargaining as bargaining by a union leading to a collective agreement the policy of enterprise confinement was only slightly modified to allow limited multi-employer bargaining. The introduction of a clear statutory obligation to bargain in good faith, including remedies to address bad faith bargaining, added an important process requirement not found in the ECA. Like the ECA, the ERA does not attempt to prescribe the content of collective agreements or employment contracts. Second, while unions obtained status through registration under the ERA this does not convey either the same extensive rights or obligations as the arbitration system. A union can represent only its members and members at a workplace can vote with their feet if they disagree with their union's policies or strategy.

The Labour government did strengthen personal grievance protection by reversing judicial undermining of these rights during the 1990s, and the obligation of good faith, encompassing all aspects of the employment relationship further strengthened those rights and in particular requires consultation in cases of potential redundancy. Labour also improved minimum code provisions, increasing the minimum wage, annual leave and introduced paid parental leave.

Like Work Choices, the ECA was a highly partisan piece of legislation largely drafted by, and in the interests of, a particular segment of the employer community. The introduction, in 1996, of the mixed member proportional (MMP) electoral system (that favours third parties and special interest groups at the expense of both major parties) has made it harder to secure similar legislation in the future just as it also constrained reforms Labour sought to introduce in 2000.

Australia

In Australia the attack on the arbitration system began in the 1970s and, while it ebbed and flowed at the state/territory level, it ultimately secured major gains in terms of de-collectivising industrial relations, first under Labor and more dramatically under conservative governments.⁵³ For a variety of reasons these changes lagged behind New Zealand with two important political differences being, first, the existence of a Labor government for a crucial period from the 1980s until 1996 and, second, the fact that the Howard Coalition government elected in 1996 was unable to obtain a clear majority in both Houses until 2005.

The decade after 1983 was dominated by the Accord process, essentially a bipartite political settlement on wages policy during the period of Labor government. Apart from OHS federal legislative, reform was left largely in abeyance during the years New Zealand was undergoing major structural reforms. During the 1980s there were moves to productivity based bargaining and single union workplace agreements on Greenfield sites. It was not until the Industrial Relations Act 1993 (Cth) that significant legal reform took place when the increasingly neo-liberal Keating Labor government established provisions for non-union agreements and reduced the role of the federal arbitration tribunal to promoting enterprise bargaining. National wage increases increasingly evolved to a safety net role.

More radical reform followed the 1996 election of the Howard Coalition government. The Workplace Relations Act 1996 (Cth) introduced measures to promote individual employment agreements and de-unionise workplaces. These included placing non-union agreements and union negotiated agreements on an equal footing, establishing a statutory form of individual agreement (Australian Workplace Agreements or AWAs), scaling back minimum award conditions (to 20 allowable items), restricting the role of the federal tribunal and limiting the rights of unions to enter workplaces and negotiate on behalf of workers.⁵⁴ AWAs were particularly important as they allowed derogation from award conditions albeit subject to a 'no-disadvantage test'. These reforms departed from New Zealand because, if anything, they made the institutional apparatus of industrial relations even more bureaucratic and interventionist than previously. Unlike New Zealand, the Australian government became actively involved in supporting employer attempts to weaken if not crush union representation, most notably in the dispute between the Maritime Union of Australia (MUA) and Patrick Corporation, and the royal commission into the construction industry (and the agency established after this).

The Howard government's determination to fundamentally reshape the industrial relations landscape (with the help and encouragement of particular employer groups) became more apparent following the 2004 election when it gained control of both Houses of Parliament. With no pretence of neutrality it used these powers to enact the Workplace Relations (Work Choices) Amendment Act 2005 (Cth). Work Choices further reduced allowable award matters as well as the role of the federal tribunal (including a new body called the Australian Fair Pay Commission to set minimum wages), enhanced access to and limited controls on the content of AWAs, abolished unfair dismissal protection for workers in enterprises with less than 100 employees (and increased the scope for uncontested dismissal by larger firms) and imposed certification requirements for illness-related absence. Further limits were placed on the rights of unions (to negotiate, take industrial action and enter workplaces) and some matters (the use of contractors, labour hire or union training programs) were proscribed content in collective agreements. The law also sought to over-ride the industrial relations laws of Labor-dominated states and territories, which remaining truer to a collectivist and arbitral model (albeit with changes), represented a serious impediment to the federal government's agenda.

The New Zealand ECA altered the balance of negotiating power but left employment outcomes to the individual or collective negotiations whereas in Australia the federal government (1996–2007) sought to rebalance negotiating power and also impose a highly prescriptive and interventionist mode of industrial relations regulation. Indeed, Work Choices was only one aspect of a complex set of interventionist laws and institutions including the Independent Contractors Act (Cth) 2007, the Workplace Authority, Workplace Ombudsman and the Building and Construction Commission. In general, these bodies had no counterpart in New Zealand. Changes to industrial relations laws had flow on effects to OHS – the one area where workers had made substantial legislative gains since the 1980s – and the federal government had also commenced to reshape its OHS laws to parallel the take over of state powers it was attempting in industrial relations. In this regard it is instructive to compare the Building and Construction Commission, with its wide-ranging inquisitorial and sanctioning powers chiefly directed at unions, and Comcare whose inspectoral activities in relation to OHS breaches by employers compare unfavourably to even the smallest territory jurisdiction.⁵⁵

The election of a federal Labor government in November 2007 led to a rapid if so far partial repeal of Work Choices, the abolition of AWAs and the announcement of inquiries into a number of areas of contentious activity of its predecessor (including OHS laws, Comcare, and the s457 guestworker scheme). This has entailed a return to collectivism but not a full reinstatement of the arbitral model (though unlike New Zealand key elements remain). The federal Labor government has committed itself to rationalise 'business' regulation, including harmonising federal/state laws relating to industrial relations, OHS and workers' compensation. While some of the more prescriptive interventions of its predecessor will undoubtedly be targeted these reforms are unlikely to embrace the less prescriptive approach adopted in New Zealand.

In this regard, recent developments in Australia are consistent with a strong reliance on prescriptive regulation of work arrangements evident, as this article has shown, in the earliest period of European settlement and maintained thereafter, even if the character of these laws changed. Again, this is not true of New Zealand where interventionist forms of labour regulation were not a feature of much of the nineteenth century (see Table 1). The reasons for this difference in state intervention are complex and reflect the need for contingent explanations of state-labour interactions even where countries share similar origins and many other characteristics.

Conclusion

Notwithstanding the regulatory divergence identified in the final section of this article – a divergence not simply explainable in terms of the political allegiances of particular governments – differences between Australia and New Zealand must be viewed in context. Both countries reshaped their industrial relations laws in the last two decade in terms that broadly fit global shifts amongst developed countries. These changes were made even though the arbitral model pioneered by these countries both influenced progressives further afield and proved remarkably resilient for most of the twentieth century. While New Zealand more thoroughly abandoned the arbitral model both countries retained a significant body of legislation setting minimum terms and conditions. Further, both countries experienced significant union decline and a fracturing of the labour market from the mid-1970s that affected the capacity of the former to push for higher regulatory standards or even monitor and help enforce existing standards. As noted, changes to the law in both countries made this task even more difficult but these iterative effects need to be recognised.

A comparative consideration of relations between the state and labour must consider the array of laws regulating work, and the forces shaping them, if it is not to draw distorted conclusions. In this regard it is worth noting that there has also been both commonality and differences in other areas of employment law. For example Australia and New Zealand adopted Robens model health and safety legislation containing mechanisms for worker involvement through joint workplace health and safety committees and provisions to appoint employee health and safety representatives.⁵⁶ Both countries have faced serious challenges to aspects of workers compensation regimes.⁵⁷ In Australia a relatively short-lived cycle of progressive reform to workers' compensation laws in terms of scope, entitlements and increased emphasis on return to work (1975–85) was followed by a period of winding back and cost containment. In New Zealand similar pressures to contain compensation costs occurred within the context of New Zealand's universal no-fault accident compensation system which replaced workers' compensation in 1971.

Time span is also important. We took a longer term perspective than is common because it can reveal both the sources of divergence and what differences are genuinely significant.

Finally, as noted at the outset comparative analysis of state-labour interactions cannot be confined to the realm of legislation. Consideration also needs to be given to other state apparatuses such as the courts, judiciary, police and other enforcement agencies, the role of government inquiries and those affecting change including individuals and groups. Within the confines of a short study we have felt obliged to focus on the legislative dimension but have tried to point to other connections in passing such as worker resistance to laws as well as what recent research shows about the complex relationship between unions and the state in Australia (Tables 3 and 4). The integration of recent research can provide the basis for new perspectives on the state and labour history.

Gordon Anderson is Professor of Law, School of Law, Victoria University of Wellington, New Zealand. He teaches employment law and international trade law and is one of the authors of New Zealand's leading commentary on employment law: Mazengarb's Employment Law (Lexis:Nexis). Gordon has written a number of articles on the restructuring of the last two decades.
<gordon.anderson@vuw.ac.nz>

Michael Quinlan's primary interest has been the development of worker organisation in Australia and on the regulation of labour, including maritime workers. He has published on the history of labour regulation, including OHS legislation, and on immigrant workers. With Margaret Gardner and Peter Akers he is developing a database of worker organisation in Australia, 1788–1900.
<m.quinlan@unsw.edu.au>

Endnotes

^*� This article has been peer-reviewed for Labour History by two anonymous referees. The authors express their gratitude for the assistance provided by these reports. We also thank Paul Craven and Doug Hay.

^1.� Eric Fry (ed.), Common Cause: Essays in Australian and New Zealand Labour History, Allen and Unwin, Wellington, 1986; J. Bennett, Rats and Revolutionaries: The Labour Movement in Australian and New Zealand 1890–1940, University of Otago Press, Dunedin, 2004.

^2.� Raelene Frances and Bruce Scates (eds), Women, Work and the Labour Movement in Australia and Aotearoa/New Zealand, special issue Labour History, no. 61, 1991.

^3.� For a summary of these developments see Greg Patmore, Australian Labour History, Longman Cheshire, Melbourne, 1991 and Terry Irving (ed.), Challenges to Labour History, UNSW Press, Sydney, 1994. See also Laura Bennett, Women Workers and the Processes of the Conciliation and Arbitration System, unpublished, LLM thesis, University of Melbourne, 1984; Tracey Banivanua-Mar, Violence and Colonial Dialogue: The Australian-Pacific Indentured Labour Trade, University of Hawaii Press, Hawaii, 2007.

^4.� John Martin, Holding the Balance: A History of New Zealand's Department of Labour 1891–1955, Canterbury University Press, Christchurch, 1996; Greg Patmore (ed.), Laying the Foundations of Industrial Justice: The Presidents of the Industrial Relations Commission of NSW 1902–1998, Federation Press, Annandale, 2003.

^5.� For a recent review see Mark Hearn, 'Sifting the evidence: labour history and the transcripts of industrial arbitration proceedings', Labour History, no. 93, November 2007, pp. 3–14.

^6.� An exception is Paula Cowan, Of the People, by the People, for the People: Worker's Compensation in Queensland: The Rise and Fall of a Policy Community, PhD thesis, School of Public Administration, Griffith University, 2005.

^7.� For a detailed study that is well contextualised and adopts a comparative perspective see Nicolette Jones, The Plimsoll Sensation: The Great Campaign to Save Lives at Sea, Little Brown, London, 2006.

^8.� Doug Hay and Paul Craven (eds), Masters, Servants and Magistrates in Britain and the Empire, 1562–1955, University of North Carolina Press, Chapel Hill, 2004.

^9.� W (Kit) Carson and Christine Hennenberg, 'The political economy of legislative change: making sense of Victoria's new occupational health and safety legislation', Law in Context, vol. 6 no. 2, 1988, pp. 1–19.

^10.� Lucy Taksa, 'What's in a name? Labouring Antipodean History in Oceania' in Jan Lucassen (ed.), Global Labour History: A State of the Art, Peter Lang, Bern, 2006, pp. 335–71.

^11.� Robin Archer, Why is There No Labor Party in the United States? Princeton University Press, Princeton, 2007.

^12.� Laura Bennett, The Making of Labour Law in Australia, Law Book Co., Sydney, 1994.

^13.� Peter Coleman, Progressivism and the World of Reform: New Zealand and the Origins of the American Welfare State, University of Kansas Press, Lawrence, 1987.

^14.� In 1858 the population stood at 115,461 reaching 743,000 by 1896, which was widely scattered throughout the country. In 1894 the largest enterprises were two government departments, the Railways and the Post Office, with few other enterprises having more than 100 employees, the predominant pattern of employment being small or family sized businesses: Data obtained from Statistics New Zealand, New Zealand Official Yearbook, 2004.

^15.� Michael Quinlan and Constance Lever-Tracy 'From labour market exclusion to industrial solidarity: Australian Trade Union Responses to Asian Workers, 1830–1988', Cambridge Journal of Economics, vol. 14, no. 2, June 1990, pp. 159–81.

^16.� Michael Quinlan, 'Australia, 1788–1902: a workingman's paradise?' in Hay and Craven (eds), Masters, Servants and Magistrates, p. 223.

^17.� Michael Quinlan, 'Making labour laws fit for the colonies: the introduction of laws regulating whalers in three Australian colonies, 1835–1855', Labour History, no. 62, May 1992, pp. 19–37; Michael Quinlan, 'Industrial relations before unions', Journal of Industrial Relations, vol. 38, no. 2, June 1996, pp. 269–93; Michael Quinlan, 'Balancing trade and labour control: imperial/colonial tensions in relation to the regulation of seamen in the Australian colonies 1788–1865', International Journal of Maritime History, vol. 9, no. 1, June 1997, pp. 19–56; and Michael Quinlan, 'Regulating labour in a colonial context: maritime labour legislation in the Australian colonies 1788–1850', Australian Historical Studies, no.111, October 1998, pp. 303–24.

^18.� Michael Quinlan, 'Australia, 1788–1902'.

^19.� Jon Henning, 'New Zealand: an antipodean exception to the master and servant rules', New Zealand Journal of History, vol. 41, no. 1, 2007, pp. 62–82, reports prosecutions in two limited areas during a brief period of time. Henning also gives an account of parliament's rejection of master and servant legislation in New Zealand. Herbert Roth, 'The historical framework', in John Deeks et al (eds), Industrial Relations in New Zealand, Methuen, Wellington, 1978, pp. 21–22, reports master and servant prosecutions in the 1840s. Technically the Act may have remained part of New Zealand law until repealed as part of a general repeal of obsolete laws by the Imperial Laws Application Act 1988.

^20.� This information and other statistics on union growth and activity in Australia in this chapter are drawn from a database on Australian worker organisation. This database currently contains information on 3,238 organisations formed between 1795 and 1900 (estimated to be around half the bodies for which there is evidence). The sources and nature of this database are described in Michael Quinlan and Margaret Gardner, 'Researching industrial relations history: the development of a database on Australian trade unions 1825–1900', Labour History, no. 66, May 1994, pp. 90–113, and Michael Quinlan and Margaret Gardner 'Strikes, worker protest and union growth in Canada and Australia 1801–1900', Labour/Le Travail, no. 36, Autumn 1995, pp. 175–208.

^21.� Michael Quinlan, 'The toll from toil does matter: occupational health and safety and labour history', Labour History, no. 73, November 1997, pp. 14–17.

^22.� The Victorian-based Amalgamated Miners Association was a leader in this regard and its leader William Spence argued these activities were critical to building union organisation. W.G. Spence, Australia's Awakening: Thirty Years in the Life of an Australian Agitator, Workers Trustees, Sydney, 1909.

^23.� In 1892 Victorian building workers went on strike in protest at the latter, and in another case the Melbourne Tramways and Omnibus Company used conditions in its terms of engagement to establish a procedure it controlled and effectively shut off any basis for a legal claim. Age, 19 January 1892 and Argus, 22 February 1895.

^24.� Reproduced in a history of the movement published by the Age, 23 April 1883. Other accounts, including claims pursued in Sydney in 1855 and developments in New Zealand a decade earlier (and letters related to this), were published by the Age, 17, 21 September 1889, and 28 January 1891.

^25.� The League soon established branches throughout Melbourne and in other Victorian towns. Age, 23 July 1869, 9 September 1869, 8 October 1869, 28 January 1870, and 13 September 1870.

^26.�Age, 5, 6 May 1871, 25 June 1873, and 21 April 1877.

^27.� Noel Woods, Industrial Conciliation and Arbitration in New Zealand, Government Printer, 1963, p. 20.

^28.� John Martin, 'English models and antipodean conditions: the origins and development of protective factory legislation in New Zealand', Labour History, no.73, November 1997, pp. 53–76.

^29.� For a more detailed account of the Victorian struggle, the shift to a regulatory strategy, and reasons behind innovative features of colonial regulation, see Michael Quinlan, Margaret Gardner and Peter Akers, 'A failure of voluntarism: shop assistants, the early closing movement and the struggle to restrict work and trading hours in the colony of Victoria 1850–1885', Labour History, no. 88, May 2005, pp. 161–78, and Michael Quinlan and Miles Goodwin, 'Combating the tyranny of flexibility: the struggle to regulate shop closing hours in Victoria 1880–1900', Social History, vol. 30, no. 3, 2005, pp. 342–65.

^30.� William Pember Reeves, State Experiments in Australia and New Zealand, Macmillan, Melbourne, 1969 (original edition 1902), pp. 188–89.

^31.� Wilfred Whitaker, Victorian and Edwardian Shopworkers: The Struggle to Obtain Better Conditions and a Half-Holiday, David and Charles, Newton Abbot, 1973, p. 117.

^32.� See for example special theme on occupational health and safety in Labour History, no.73, November 1997.

^33.� 'Sweating refers to the employment of workers at wages so low (often piecework) that even the longest hours of work (like 16 hours per day and 80–85 hours per week) would barely provide sustenance and would endanger the health and wellbeing of those involved. For evidence of government inquiries into sweating in Victoria prior to the introduction of wages boards in 1896, see Report of the Chief Inspector of Factories, Work-Rooms and Shops for the Year Ended 31^st December 1893, Government Printer, Melbourne, pp. 6–7; Factories Act Inquiry Board, First Progress Report of the Board Appointed to Inquire and Report as to the Working of the 'Factories and Shops Act 1890' with regard to the Alleged Existence of the Practice Known as 'Sweating' and the Alleged Insanitary Conditions of Factories and Work-Rooms, Government Printer, Melbourne, 1893; and Factories Act Inquiry Board, Second Progress Report of the Board Appointed to Inquire and Report as to the Working of the 'Factories and Shops Act 1890' with regard to the Alleged Existence of the Practice Known as 'Sweating' and the Alleged Insanitary Conditions of Factories and Work-Rooms, Government Printer, Melbourne, 1894. For New Zealand, see Sweating Commission, New Zealand, 'Report of the Royal Commission Appointed to Inquire into Certain Relations between the Employers of Certain Kinds of Labour and the Persons Employed Therein,' Appendices to the Journals of the House of Representatives, 1890, H-5, p. vi.

^34.� William Pember Reeves, State Experiments in Australia and New Zealand, Volume 2, p. 135.

^35.� James Holt, Compulsory Arbitration in New Zealand: The First Forty Years, Auckland University Press, Auckland, 1986, pp. 33–35.

^36.� On the trans-Tasman policy influences, see generally Shaun Goldfinch and Phillipa Mein Smith 'Compulsory arbitration and the Australasian model of state development: policy transfer learning and innovation', Journal of Policy History, vol. 18, no. 4, 2006, pp. 419–45. On the legal influences, see Richard Mitchell, 'State systems of conciliation and arbitration: the legal origins of the Australasian model', in Stuart Macintyre and Richard Mitchell (eds), Foundations of Arbitration: The Origins and Effects of State Compulsory Arbitration, 1890–1914, Oxford University Press, Melbourne, 1989, pp. 74–103.

^37.� Ernest Aves, Report to the Secretary of State for the Home Department on the Wages Boards and Industrial Conciliation and Arbitration Acts of Australia and New Zealand, HMSO, London, 1908; P.S. Collier, 'Minimum wage legislation in Australasia', appendix 8 of the Fourth Report of the New York State Factory Investigating Commission, State of New York in Senate, no. 43, J.B. Lyon and Co., Albany, 15 February 1915, pp. 1845–2265; John R. Commons and John B. Andrews, Principles of Labor Legislation, Harper and Brothers, New York, 1915.

^38.� James Holt, Compulsory Arbitration in New Zealand, p. 53.

^39.� The major account of the establishment of arbitration in New Zealand is that of James Holt, Compulsory Arbitration in New Zealand and Noel Woods, Industrial Conciliation and Arbitration in New Zealand, Government Printer, Wellington, 1963.

^40.� Perhaps the most striking case was that early in its history the Court had declined to make an award for farm workers, clearly anticipating a backlash from politically powerful farmers.

^41.� Noel Woods, Industrial Conciliation and Arbitration in New Zealand, p. 103.

^42.�Blackball Coal Miners – Breach of Section 15 of the Industrial Conciliation and Arbitration Amendment Act 1905 (1908), Book of Awards, 9, p. 55 at 59.

^43.� Richard Hill, The Iron Hand in the Velvet Glove: The Modernisation of Policing in New Zealand, 1886–1917, Dunmore Press, Wellington, 1995; chapters 18 and 20 describe the active role played by police, police specials, and the military in defeating the Red Feds in 1912–13.

^44.� Patrick O'Leary, Employers and Industrial Relations in the Australian Meat Processing Industry: An Historical Analysis, PhD thesis, School of Organisation and Management, University of New South Wales, 2007.

^45.� Jane Bryson and Gordon Anderson, 'Reconstructing state employment in New Zealand', in Marilyn Pittard and Phillipa Weeks (eds), Public Sector Employment in the Twenty-First Century, ANU E Press, Canberra, 2007, ch. 9.

^46.� Peter Brosnan, David Smith and Pat Walsh, The Dynamics of New Zealand Industrial Relations, John Wiley, Milton, Queensland, 1990, p. 188.

^47.� Laura Bennett, 'Swings and shifts in Australian industrial relations: employer dominance in the 1990s', New Zealand Journal of Industrial Relations, 2001, vol. 24, p. 231; Employment Conditions Knowledge Network, Employment Conditions and Health Inequalities, Report to World Health Organisation Commission for the Social Determinants of Health, Geneva, 2007.

^48.� The discussion here focuses on the overall architecture of the law and regulatory mode in each country.

^49.� The opposition National party proposes only minor changes in the current (2008) election campaign.

^50.� Jonathon Boston, Income Policy in New Zealand, VUP, Wellington, 1984, describes wage policy over this period.

^51.� On the Act, see Gordon Anderson, 'Individualising the employment relationship in New Zealand: an analysis of legal developments' in Richard Mitchell and Stephen Deery (eds), Employment Relations: Individualisation and Union Exclusion: An International Study, Federation Press, Sydney, 1999, p. 204; See also Sarah Oxenbridge, 'The individualisation of employment relations in New Zealand: trends and outcomes', in Mitchell and Deery (eds), Employment Relations, p. 227.

^52.� Gordon Anderson, 'Just a jump to the left? New Zealand's Employment Relations Act 2000', Australian Journal of Labour Law, vol. 14, 2001, pp. 62–88; and Gordon Anderson 'Transplanting and growing good faith in New Zealand labour law', Australian Journal of Labour Law, vol. 19, no. 1, 2006, pp. 1–29.

^53.� Laura Bennett, 'Swings and shifts in Australian industrial relations', p. 231.

^54.� Michael Quinlan, 'Industrial relations policy developments in Australia, 1977–98: a critical review', Journal of Australian Political Economy, no. 42, December 1998, pp. 76–106.

^55.� Michael Quinlan and Richard Johnstone, 'The implications of de-collectivist industrial relations laws and associated developments for worker health and safety in Australia, 1996–2007', unpublished paper.

^56.� Philip Bohle and Michael Quinlan, Managing Occupational Health and Safety: A Multidisciplinary Approach, Macmillan, Melbourne, 2000; and Richard Johnstone, Michael Quinlan and David Walters, 'Statutory OHS workplace arrangements for the modern labour market', Journal of Industrial Relations, vol. 47, no.1, March 2005, pp. 93–116.

^57.� Philip Bohle and Michael Quinlan, Managing Occupational Health and Safety, and Michael Quinlan, 'Workers' compensation and the challenges posed by changing patterns of work: evidence from Australia', Policy and Practice in Health and Safety, vol. 2, no. 1, 2004, pp. 25–52.

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The Changing Role of the State: Regulating Work in Australia and New Zealand 1788–2007