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BOOK REVIEW
| Anthony Forsyth and Andrew Stewart (eds), Fair Work: The New Workplace Laws and the Work Choices Legacy, Federation Press, Sydney, 2009. pp. xxii + 262. $80.00 paper.
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| An understanding of Australian industrial relations starts and ends with the Australian Constitution. Traditionally, the major power available to the Australian government was section 51, placitum xxxv, of the Constitution. This was the power which enabled the national government to enact laws for interstate industrial disputes to be resolved by the processes of conciliation and arbitration. This was an indirect power, which, as far as the Australian government was concerned, had two major limitations. It had to share industrial relations powers with the states and delegate its 'national/federal' power to a tribunal charged with the responsibility for conciliation and/or arbitration. Beginning in 1993, with the Keating Labor government, and continuing with the Howard Coalition government's Workplace Relations Act 1996 and Work Choices Act 2005, national governments based their industrial relations agendas on the corporations power, section 51, placitum xx, of the Constitution. This is a direct power which enables the national government to take over the powers of the states and to do whatever it likes which includes controlling the actions of tribunals, if not doing away with them all together. |
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It might be useful to view the corporations power as a new industrial relations toy available to a national government. It is a toy which can be played with; with more or less abandon, depending on the whims, or more correctly on the forces which determine such whims, of the national government of the day. A major playing of this toy occurred with the passage of the Work Choices Act 2005. This legislation started the process of neutering the states, witnessed increasing intervention and directions by the national government (in the form of the Minister) and reduced the role and stature of the federal tribunal, the Australian Industrial Relations Commission. It did more than this however. Work Choices specifically legislated to interfere with the making of employment contracts in favour of managerial prerogatives and substantially eroded and/or abolished minimum protections available to employees and created a juridical system which severely restricted the operation of unions. |
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Work Choices induced a spate of writings by industrial relations and labour law scholars. The following journals produced special issues on Work Choices: The Journal of Australian Political Economy (2005), The Economic and Labour Relations Review (2006), The University of New South Wales Law Journal (2006) and the Australian Journal of Labour Law (2006). |
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The Rudd Labor Party won the 2007 federal election. Amongst other things, it pledged to 'tear up' Work Choices. In 2008 it introduced the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 to enhance the safety net, or minimum conditions of workers. This was followed by the introduction of the Fair Work Bill 2008 to give effect to its broader industrial relations agenda. The Bill has since been transformed into an Act, with most of it becoming operative as of 1 July 2009. |
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In July 2008 a group of labour lawyers held a workshop at Monash University to examine various aspects of Work Choices. Virtually all of them had made contributions in the various journals identified above. Following the workshop, the respective authors were told to go away and write up a final version of their papers. In the interim, the Rudd Labor government introduced the Fair Work Bill 2008. A decision was taken to reorient the respective papers away from an examination of Work Choices to a comparison of it with the Fair Work Bill 2008. This decision appears to be based on an assumption that there is more of a market for current events than for things just past (which tells us something dramatic about the taste for historical research in Australia – even amongst scholars!); hence the highlighting of FAIR WORK in the book's title. |
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Besides an introduction and conclusion, the book comprises nine chapters which compare the Howard and Rudd governments' approaches to industrial relations under the regency of the corporations power. In doing so, they not only delve into legislative niceties, but also examine the relevant case law which flowed in testing the reach of Work Choices and draw on overseas experience where appropriate. The issues examined are a national system of industrial relations regulation, the safety net, enforcement of the net, protecting standards in moving between different industrial instruments, collective bargaining, industrial action, union security, dispute resolution, and unfair dismissal. |
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The respective chapters are essentially descriptive in comparing and contrasting extensive and complicated pieces of legislation. The only author who delved into more thematic issues was Joellen Riley who provided interesting insights into the purpose of labour law in her chapter on dispute resolution (pp. 201–205). There is also more than a small degree of overlap between the respective chapters, as the authors examine essentially similar issues from different perspectives. The chapters also focus more on Work Choices – because of the availability of information, such as case law – than Fair Work. From a purely academic perspective the book would have been more effective if it had devoted itself to a critical examination of Work Choices. The late marriage with Fair Work should have been confined to a single and final chapter entitled 'Looking Forward'. |
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The overall conclusion of the editors is that employees will be better off under Fair Work than Work Choices. The picture however is not so bright for unions (pp. 236–37). This is a somewhat surprising conclusion given the prominence afforded to 'good faith bargaining' under Fair Work. The editors maintain that 'A right to bargain at a workplace only has meaning for a union if it can organise there, and the resources required are usually more effectively directed at larger enterprises' (p. 237). Such a statement seems to reflect an unspoken belief that unions have been so dismembered under both the Accord years and the Howard government that they will be unable to assume any meaningful role at the bargaining table. More generally, Fair Work removes and/or places some constraints on managerial prerogatives which Work Choices enshrined in an extensive and complicated piece of legislation. |
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The final chapter also has an ahistorical feel. It tells us of 'the increasing influence of overseas systems of workplace regulation on Australian labour law' (p. 233). In making such a statement the editors ignore the importance of neo-liberal ideas developed by Margaret Thatcher of the United Kingdom and Ronald Reagan of the United States of America which helped to inspire Work Choices. They are also in ignorance of the incomes policies and corporatist ideas of Western Europe which were utilised to drum up support for wage indexation, from 1975 to 1981, and the Accord(s) of 1983 to 1996. It might also be pertinent to add that Henry Bournes Higgins, who was so important to the early development of industrial tribunals, was heavily influenced by the tenets of Fabian Socialism, especially the writings of Sidney and Beatrice Webb; Catholic Social Thought, especially the 1891 Papal Encyclical Rerum Novarum (The Workers' Charter); and American Progressivism. It was not by accident that his 'New Province for Law and Order' was published in the Harvard Law Review. Australia always has and probably always will be 'open' to ideas developed elsewhere. Is this a virtue, or is it not? |
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This volume provides useful information on major legislative changes that have occurred in Australian industrial relations in the first decade of the twenty-first century. These are changes which have occurred under the corporations power, rather than the more restrictive, traditional conciliation and arbitration power. If nothing else, recent experience has demonstrated that a national government which now enjoys direct powers will utilise them in giving vent to whatever their desired goals and objectives happen to be. As national governments change we can expect that there will be further major legislative changes and more volumes like this one to explain and summarise what has occurred. |
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| University of Melbourne |
BRAHAM DABSCHECK | |
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