David Brody

ADDRESS

American Labour Law as a Model for Australia? Or, Can You Get Here From There?

Keynote address prepared in the United States and presented at the 11th National Labour History Conference, Perth, 8 July 2009.

Let me begin on a personal note. I first came to Australia in 1984 as a visiting professor at the University of Sydney, courtesy of my friend Steve Salsbury, who was a dean of some kind and liked to have old pals around. I had left a country where the labour movement was already in a bad way. Thirty years of New Deal liberalism had ended, and we were into a new age of American conservatism. One of Ronald Reagan's first acts as president was to fire all 14,000 air controllers for engaging in an illegal strike, signaling that it was okay for American employers to do likewise, which, after decades of restraint, they did with a vengeance. Strike-breaking – striker replacement, as it was politely termed – became the norm, and, because losing a strike often meant losing a job and even union representation, American workers soon stopped striking. In the manufacturing sector, the heart of union power, the steel sector was shutting down, non-union foreign transplants, so-called, out-competed the unionised American car companies, and an industry like meat-packing, once heavily unionised, reverted to sweated conditions very like Upton Sinclair's The Jungle. The signal struggle of that era – dramatised in the film Norm Rae that some of you might remember – was against J.P. Stevens, a big textile manufacturer, which lasted for nearly 20 years and, while it ended in a symbolic union victory, in fact it showed employers how easy it was to defy the labour law. In 1984, as I de-planed, our labour movement was already spiraling down to where it is today, at 7.5 per cent of the private-sector labour force.

So you can imagine that stepping on to Australian soil seemed like entering an alternate universe. The Labor Party had just returned to power. The Premier, Bob Hawke, himself had come out of the unions. And the cornerstone of the new government's program was the Prices and Incomes Accord, with the Australian Council of Trade Unions (ACTU) as principal player. There aren't good American words to describe my sense of Australia at the time, so I'm appropriating the words that Julia Gillard used when she introduced the Fair Work Bill last November: that Australia was a place that believed in the fair go, in mateship at work, and, ever since the Harvester decision of a century ago, in a living wage – a country like other great capitalistic democracies, 'but without their wide social inequalities'. I know that some of you are smiling at my naïveté. Still, everything is relative, and to me, as a refugee from Reagan's America, the Australia of 1984 seemed too good to be true.

Which of course it was, because even then it was clear – I think signaled by the Accord itself – that on many fronts, including the awards-based industrial-relations system, Australia was no more able to resist the forces of globalisation than America. Ever since – you know this of course better than I do – the Australian labour-relations regime has been in the throes of change – throes is really the right word – and has just now come out at the other end, with Fair Work Australia. In the US, the labour law has similarly been in a state of siege, although our struggle began earlier, with a major, ultimately failed, effort at reform in 1978, another inconclusive round early in the Clinton years, and now, just contemporaneous with the battle that junked Work Choices, the American campaign for the Employee Free Choice Act.

All of this is by way of preface to the title of my talk today. You have to understand the timing. Charlie Fox invited me to speak at this conference in late August 2008. At that point the prospects for the Employee Free Choice Act looked pretty good. It had been endorsed by the Democrats, and they were almost certainly soon going to be in charge – White House, both Houses of Congress, the whole works. In Australia, the Rudd government was still formulating the Fair Work Bill. So, on labour law reform, both countries seemed more or less in the same place. And for some reason, although it was nearly a year off, Charlie needed a title right away. So without a lot of thought, and because it had a nice ring to it, I came up with this title: American Labo[u]r Law as a Model for Australia? Or, Can You Get Here From There?

I need to start by acknowledging that the question posed in this way is unfortunate, on two counts. First, it betrays the typical American hubris – that we should presume to be a model for others, a hubris compounded by the fact that, when it comes to labour law, the United States (US) pays no attention to other countries, not even the international declarations of labour rights to which it is a signatory. Moreover, why would Australia even want to get from there to here, since our legal regime is the most hostile to organised labour of any in the democratic world? But, of course, in this free-market age, that's one of its charms. It turns out, however, that when other Anglophone countries embrace America's labour-market practices, they don't copy its labour law. The centerpiece of Work Choices, for example – the legislatively-mandated individual employment agreement – is utterly alien to the American experience. The borrowing comes afterward, when labour parties return to power and try to pick up the pieces, by some variant of enterprise bargaining as a middle way between the bad old ways and the bad new ways. This is true of the United Kingdom (UK) and New Zealand, and, in its own way, Fair Work Australia, because two attending concepts of enterprise bargaining – majority rule and bargaining in good faith – come directly from the American law. The question is, do the borrowers know what they're getting? And my answer is, no.

To show you what I mean – how things get lost in translation – let's consider the question of arbitration in enterprise bargaining. In the final negotiations leading up to the Fair Work Bill, the Rudd government opposed arbitration, while the Labor's Right faction favored it. And where did they turn for support? You guessed it. So let me explain why the Employee Free Choice Act calls for arbitration. It's there to deal with a pervasive problem when American unions win representation elections and are certified as bargaining agents. Employers then have a duty to bargain – that's where 'good faith' comes in – but if they're practitioners of union avoidance – a good American term – they don't go in looking toward an agreement; they go in intending to sabotage the proceedings. They want to force a strike, in which case they bring in replacements and break the union, or drag things out until the workers lose heart and the union dissolves. They succeed nearly half of the time. The arbitration provision is intended to remedy this particular circumstance; it applies only to the first contract.

In the Australian case, I suspect it was a foregone conclusion, given the country's history, that if a fight was made for it, arbitration would be in the final Fair Work Bill, although it's now called a 'workplace determination', and that it would be a resource generally available, although (so the Rudd government hopes) infrequently used, for the enforcement of good faith bargaining. In the US case, even though applying only to first contracts, arbitration has provoked furious employer opposition, and in the unlikely chance that it actually survives, is certain to be challenged in the courts. Maybe invoking first-contract arbitration helped, but the Labor faction that invoked it really wasn't talking about the same thing.

So about my title: The answer is no, you can't get here from there. I knew that from the start, of course, and my title was intended really as a kind of provocation. I have long held that labour regimes are nontransferable. They may bear resemblances, and they deal with the same range of issues, but they are uniquely experienced. I came to this conclusion when I was trying to figure out why workplace representation at unionised American firms was so formalised and legalistic. A few of you may be familiar with the resulting essay on 'workplace contractualism', the term I coined to describe American practice. In the course of my research, I came upon an obscure International Labour Organization (ILO) document soliciting reports from signatory countries about how they handled worker grievances. The idea was to issue a formal ILO finding on the standards for handling grievances. But the responses were so diverse – they make fascinating reading – that the ILO, in effect, abandoned the project.

Since I can't abandon this speech in mid-course, I propose to use my remaining time for an exercise – a kind of justification for my view that you really can't get from there to here – in heavily tilted comparative history, mainly about the American side, but with reference to Australia, sometimes explicitly, but mostly left to you. I'll break things down into four heads: foundations; modern regimes (which in the US begins with the National Labor Relations of Act of 1935); the erosion of those regimes; and outcomes. Let me warn you in advance that, while highly abbreviated, I think I can manage the essentials, I can't go into the whys, which of course is what mainly interests us historians.

One couldn't hope for a better example of foundations in play than the experience you have just gone through here in Australia. Work Choices went too far. It insulted cherished values going back a hundred years to the original Conciliation and Arbitration Act, and turned the country against a Coalition government that it had just re-elected, and at last given control of both Houses of Parliament – too much power, it turned out, for John Howard's own good.

In the US, these foundations cannot be traced to a single event like the Arbitration Act, but to the common-law tradition. All Anglo-Saxon countries of course share this legal tradition, including Australia, and at some points, you'll think: we do that here too. But, as with everything else, the common law evolved in different ways, and in the US it took a direction extraordinarily hostile to trade-union development, a hostility that manifests itself in subterranean ways to this very day.

I take my starting point from Robert Seinfeld and his wonderful book, The Invention of Free Labor (1991). By free labour, Seinfeld means specifically the absolute control of a worker over her person. I say 'her' because the originating case he cites is Mary Clark, Woman of Color (1821), declaring her right to walk away notwithstanding the 20-year indenture she had signed. The break with the past here can't be overemphasised, not only because of the huge role of indentured servitude in the peopling of America, but also because, even aside from bound labour, employment had always and everywhere involved some degree of unfreedom. Only much later, did other countries abandon the practice of imprisoning workers for nonperformance of service. So important was the free-labour principle to Americans, that they enshrined the abolition of involuntary servitude, along with slavery, in the 13^th Amendment after the Civil War. The 13^th amendment is the only place in the US Constitution that bears directly on labour and, as a starting point for shaping a labour regime, stands in stark contrast to the labour power in the Australian Constitution that authorises Parliament to make laws to conciliate and arbitrate industrial disputes.

Free labour – an unqualified right to walk away – is a wonderful thing, of course, but paradoxical in its effect. As the jurist A.V. Dicey pointed out a century ago, workers have to be free before they can have unions, but unions then impinge on their personal liberty. Dicey called this an insoluble problem, for which every liberty-loving country had to find its own 'rough compromise'. In America, just because it was the inventor of free labour, that rough compromise fell at one extreme, heavily privileging individual as against collective rights. In an essay of mine – 'Freedom and solidarity in American labor law' – I once tried to trace how that bias worked itself out in the law, and here I'd like to summarise what I found, the elements – three in number – that constitute the foundations of America's labour regime.

First, as to the role of the state: There was, like everywhere else, initially a question of the legality of trade unions, but unlike any other country I am aware of, not because unauthorised associations were deemed a threat to the state. The state itself never challenged union formation in America. The issue was whether, as possible conspiracies under common law, they harmed other citizens, and from the very first case in 1806, it was private citizens who were the protagonists, bringing suits into the courts, and through the case law that resulted, by the accretion of precedent upon precedent, making an the American law of trade unionism. It is a remarkable fact that there was no collective-bargaining legislation in the US, with a couple of partial exceptions, until the 1930s. The role of the state, via the courts, was strictly as an arbiter between contending private interests – as well, of course, as enforcer of the peace during industrial disputes.

Second point: The tendency of this judge-made law was persistently – I would say grossly – hostile to trade unionism. Two legal weapons emerged as especially potent. First, injunctions – court orders intended to halt irreparable damage to property prior to the adjudication of a dispute – that judges seized on, with no basis in law, when they took fright at the effective use of boycotts by the Knights of Labor. Second, yellow-dog contracts – not a term I hope known to Australians – meaning contracts in which workers agree, as a condition of employment, not to belong to unions. The courts regarded yellow-dog contracts as a lawful exchange of considerations: the employer proffered the job, the employee handed over his freedom of association. The surrendered worker's right became, in effect, the employer's property and, as the Supreme Court declared in 1917, in a poisonous marriage of two anti-union doctrines, entitled him to an injunction against any union trying to organise his workers. So hostile did the law become that the labour movement – I'm talking about Sam Gompers' American Federation of Labor, not the Industrial Workers of the World – advocated defiance of injunctions even if it meant going to jail.

Third point: the underlying free-labour doctrine. This had one direct legal effect. The courts reasoned that, if workers had an absolute right to leave, the employer had an absolute right to fire them – for any reason, or no reason at all, what is known as 'at will' employment. Except for at-will employment, liberty to work was not itself a significant source of case law because few workers ever sued unions, although employers commonly cited the closed shop when they brought suit against unions. The impact was primarily ideological, giving employers a justification for refusing to engage in collective bargaining: they were protecting the liberty of their workers. This is a powerful, powerful argument in America, and when we get to the final act of this drama, you'll see how it plays out in today's battle over the Employee Free Choice Act.

It was not as if Americans couldn't imagine that things might be otherwise. Recent scholarship emphasises the flow of reform ideas, not only trans-Atlantic, but trans-Pacific. The secret ballot – a thorn, I have to say, in labour's side in the current debate – came from you and for a considerable time was known in America as the Australian ballot. In the Progressive era, the pre-World War I years, some reformers advocated the New Zealand/Australian system as a solution to America's industrial conflicts, which were far worse, I dare say, than Australia's. The idea, however, never made much headway, not least because compulsory arbitration was anathema to the labour movement, whose ideological grounding was in voluntary association.

Still, great and terrible strikes, when they broke out, created a dynamic very like Australia's. One sees this, for example, with the Pullman Boycott of 1894, which shut down the nation's entire railroad network. The federal government did exactly what the Australian authorities would have done: it crushed the strike. But afterward, the architect of that action, the Attorney General and a former railroad lawyer (Richard Olney), set in motion the legislative process that led ultimately to a federally-regulated system of railway labour relations.

But the tendency in the face of the extraordinary industrial violence of the late Progressive era – the massacre of strikers' families, mass arrests, buildings dynamited – was not, as in Australia, toward compulsory arbitration, not even regarding the railroads. Progressives concluded that the cause of industrial violence was the employers' anti-unionism. So that's the first thing about our modern labour law. It's aimed at the behavior of employers. Second, the objective to be achieved – what was to be protected – was defined in terms of workers' associational rights. The American Bill of Rights protects freedom of association, of course, but it's a right protected against violation by the state, not against interference by other citizens. The legislation that resulted, the National Labor Relations Act of 1935, in effect expanded this existing right – and the linked right to bargain collectively – against actions by employers and lodges enforcement in a new quasi-judicial agency, the National Labor Relations Board (NLRB). I want to skip over the complex political process by which this came about and go at once to its essential elements – four in number – and show how, in their pristine 1935 form, they stack up against Fair Work Australia, which of course, since it only began to be implemented last week, also is pristine.

First: It became an unfair labour practice – the term for violations of the American law – for an employer to dismiss, discriminate against, or coerce workers for exercising their associational rights. Fair Work Australia has a similar provision, (as indeed did Work Choices), but whereas this Australian protection is embedded in a web of unlawful and unfair provisions, in the American law it stands alone, applying solely to associational activity. In upholding the law, the Supreme Court explicitly stated that in no other respect did the law impinge on at-will employment. It's true that there has recently emerged a case law of implied contracts, but this is easily remedied by having the employee sign a statement acknowledging that employment is on an at-will basis and – I'm quoting this from advice on a employment law firm's website – 'that his or her duties, promotion or demotion, salary, relocation and all items regarding work are at the discretion of the employer'. The other constraint on at-will employment, of course, comes from the anti-discrimination laws, beginning with the Civil Rights Act of 1964. But unlike Australia, none of this is part of the labour law. Moreover, the recourse of aggrieved workers is far more robust under the anti-discrimination laws. One of the objectives of the Employee Free Choice Act is to enforce the right to organise, now routinely flouted by employers, and bring it to the level of civil-rights protections.

Second: Duty to bargain. This provision was in some ways a bigger deal than the right to organise. For one thing, it dealt with the principal cause of industrial conflict in America, which was the refusal of employers to deal with unions, no matter how many members they represented. The vast majority of violent strikes up to 1937, when the law actually took effect, were strikes for recognition. Duty to bargain was a daring intrusion on the employer's liberty of contract, hence the insistence on all sides that collective bargaining itself remained unchanged, including the right to strike and lockout and additionally, on the employer's part, the right to bring in strike-breakers. This obeisance to liberty of contract helps explain why American employers feel so empowered to fight first-contract arbitration in the Employee Free Choice Act.

The problem that first-contract arbitration addresses is that the mandated duty to bargain implies getting to an agreement. The ambiguity is obvious, and inevitable, because the law simultaneously embraces duty to bargain and liberty of contract. It's true that liberty of contract has narrowed somewhat as the law evolved – for example, the NLRB distinguishes mandatory/non-mandatory bargaining issues, and the right to strike is reduced by the President's power to halt national disputes for 80-day cooling-off periods – but the idea of collective bargaining as a free, voluntary process still exerts a powerful hold in America.

And, like the worker's right to organise, in American law collective bargaining stands alone. There is no modern award underlying it, no requirement about what should be in it, no agency where it is registered and approved. And, at the time the collective-bargaining law was adopted in 1935, virtually no state-provided safety net for workers. So that, far beyond the Australian concept of enterprise agreements, the union contract did – and to a large extent still does – the work of social justice for American workers. It is here, and not by law, that they are protected against unfair dismissal. It is here, and not by law, that they have due process, agree-upon work rules, and richer health insurance, retirement benefits, and wage rates than other workers. This gives a brutal meaning to union density in America.

The union contract bears so much weight because, historically, it is a product of labour voluntarism. American unions have always been very aggressive about what goes into the contract because it is the cement that holds the union, as a voluntary association, together. And it's, in part, because the contract bears so much weight that American employers are so resistant to collective bargaining. This is the American context of bargaining in good faith and it bears a far larger load than those words in Fair Work Australia.

The third distinctive feature of the American law could well be bypassed, since it is not at issue in our current debate, but it is pertinent here in Australia, where, as unions lost ground in recent years, scholars began to talk about works councils and shop committees, prompting Greg Patmore, for example, to take up the subject historically and comparatively. And Australia has had some experience with non-union forms of representation ever since the Keating law of 1993. It's an open question how such non-union forms of representation will fare under Fair Work Australia. In my opinion, not very well, since Australian unions would have to be very sluggish indeed if they did not become the dominant agency for negotiating enterprise agreements.

In American law, by contrast, there's no open question. Workplace forms of employee representation not created under collective bargaining – another demonstration of its singularity – are unlawful because, in order to function, they require sufficient employer assistance to make them company-dominated under the law's definition. This concept – company domination of a labour organisation – has now been appropriated by the UK and New Zealand and probably, by inference in the general no-coercion provision, by Fair Work Australia, but it has a very different resonance in America, because the company-domination prohibition arose out of America's anti-union history.

Some American employers after World War I and then, with the onset of the New Deal, en masse, set up company unions – variations of works councils, in fact – as an alternative to independent unions. This was really just another stage, in a more benign form, of the enduring battle against collective bargaining, and the authors of the labour law, recognising it as such, declared such organisations to be company-dominated and barred them. In itself, this history might be little interest here, except that it explains the final – the fourth – distinguishing feature of the American labour law, which is the process by which it determines whether or not workers want union representation.

During the Congressional battle leading up to the 1935 law, before they decided simply to bar company-dominated labour organisations, advocates of the law sought a middle ground with employers, which was to let the employees choose whether they preferred company or independent unions. That's where the idea of majority rule in the labour law came from, although I doubt that Julia Gillard knows this. So for her and her fellow negotiators, adapting majority rule to Australia's needs seemed easy enough, because the idea itself, once presented, is naturally attractive in a democracy like Australia's. What Gillard intended was a way of determining whether workers wanted enterprise agreements. But in America, workers are choosing something different – a bargaining agent. Moreover, once it's the bargaining agent, the union also acquires exclusive rights – it represents every employee in the bargaining unit – and, to take the next step, it's to that union that the employer owes a duty to bargain. The intent was to tame the unionisation struggle by substituting state-mandated majority rule – the rule of law if you will – for the raw tests of power that defined America's labour history up to that time.

That completes my survey – the four points of comparison – between the original American law of 1935 and the new Australian law of 2008. Up to this point, I've been engaged in a static comparison – one law set against another. Now, in my concluding comments, I'd like to set things in motion, with this question in mind: how different are the processes of policy change in our two countries? That's a trickier proposition, inherently so, but also because it puts me at a disadvantage, as a novice in all matters Australian. It's much harder to understand how a law came about than to read the law itself. Yet this much I do know. Change in Australia's labour policy takes place in the public realm, accessible to the ordinary citizen and subject to political debate. I daresay any member of this audience could provide me with a pretty coherent narrative of how the country moved from the awards system to the first Accord in 1983, to the Keating government and enterprise bargaining in the early 1990s, to the Coalition victory and the start of individual contracts in 1996, down to the nadir, Work Choices in 2005. If an audience of American labour historians were given the same task, they would be hard put to do it because, aside from one moment over half a century ago, there is no political narrative to describe. That's the difference I mean to emphasise, that while one might say that both countries ended up more or less at the same place – the current parlous state of American law as equivalent to Work Choices – the United States got there via a sub-political path, or, to put it more crudely, via policy-making by stealth.

The National Labor Relations Act might be likened to a mini-constitution, which lays out broad principles and procedures – the original law was scarcely ten pages long – and leaves it to the NLRB, subject to review by the federal appellate courts and ultimately the Supreme Court – to fill in the blanks. An enormous case law, starting almost from Day One, has built up. My out-of-date copy of the handbook that labour lawyers use to keep up on ruling precedents runs to 535 pages and lists 1,675 cited or footnoted cases in the index. Let me offer a few key examples. In Fair Work Australia there is a provision, like in its predecessor, governing entry of union representatives to company property. The American law makes no such provision, but there is case law, originally giving organisers access as needed, then limiting it on an equal-time basis, and finally denying it except where the labour force was so isolated – say, at a mining facility in Alaska – that an organiser would have no way of reaching to employees other than on company property. Or consider what we Americans call 'captive audience' meetings – in which employee attendance is required to hear the employer argue against unionisation. Originally, captive audience meetings were unfair labour practices; then they were permitted if the union got equal time (the other side of the access issue); and finally, accepted as an absolute employer right. The same goes for individual interrogations. If this strikes you as familiar, of course it is, because it replicates, with the very same dynamics, how trade-union law had been made by judges for a century prior to the New Deal. The essence of that process is a balancing of one person's right against another's, and since on all the issues I've cited, the employer's right is a property right, that's the one that ultimately prevails.

This line of case law best reveals the underlying – one might say, undermining – processes at work, but two others are in fact more important. One involves employer speech. The authors of the law believed that employer speech was inherently coercive and, knowing that, the NLRB in the early years required that employers be silent during union campaigns. In 1941, however, the Supreme Court found that the Board was violating the employer's freedom of speech and laid down this ruling: employers can speak, but their speech can't be coercive. I can't pause to talk about the implications of this distinction, except to say that it is entirely characteristic of how American courts interpret the labour law – they always say they are striking a balance between employee and employer rights – and profoundly wrong. Employer speech is inherently coercive and, despite an immense case law, impossible to police. The second development, intertwined with employer speech, concerns the procedures for establishing majority rule. Originally, the American law was quite like Fair Work Australia's regarding whether employees want an enterprise agreement, open-ended and allowing for informal and varied methods for determining majorities. But then the NLRB ruled that, if an employer requested it, there had to be an election. That was crucial, because the election gave employers the platform they needed for exercising their speech rights.

At this point, with the case law in place, politics intervened. In the post-World War II reaction, following a wave of strikes, the Republicans pushed through the Taft-Hartley amendments, which made elections mandatory for NLRB certification, affirmed employer free-speech rights, and, for good measure, made unions subject to unfair labour practices. The idea was to re-orient the representation process so that, instead of being expressive of self-organisation, it became a competition between labour and management, with the worker as voter. Taft-Hartley was an opportunistic political event, never to be repeated, and it rested, as I've indicated, on case law already in place. What this case law accomplished, as the law tilted ever more to one side, was a stranglehold by American employers on the unionising process. On this most fundamental problem, the Employee Free Choice Act proposes that workers be enabled to demonstrate majorities by the signing of authorisation cards – what's known in America as card check – as a way, hopefully, of insulating them from the workplace coercion that occurs during election campaigns.

Somebody in this room is probably thinking: if the authors of the law believed that employer speech was inherently coercive, why didn't they just declare it an unfair labour practice and ban it? In fact, they considered doing that, and didn't. Why they didn't is the key to explaining why American labour law was vulnerable to the downward course I've described, but in keeping to my commitment – for the sake of time – not to deal with the whys, just let me suggest that it's an accommodation to the jurisprudence that preceded the National Labor Relations Act. Every one of its key provisions, save company domination of a labour organisation, was potentially unconstitutional at the time the law was adopted in 1935.

I'd like to read, by way of crystallising what I've described, from a petition by 150 historians to Congress about the Employee Free Choice Act:

The labor law, although amended and interpreted over many years, is still conditioned by a grand bargain made in 1935: the state would rule with a light hand if employers complied in good faith. That bargain once worked reasonably well, but no longer. In recent years, employers have taken to fighting the law at every turn. They have, in effect, withdrawn their consent, and it is no longer true that workers can exercise the rights the law says they have.

The American problem is how to translate that failure – for which is no accessible political narrative – into the kind of political action that has just resulted in Fair Work Australia.

Just consider how differently things have played out. Obama won as resoundingly as did Rudd, but from there on nothing matches. Although committed to the Employee Free Choice Act, the Democrats never made it a campaign issue. In the Australian election, of course, Work Choices was the whole ball game. That's one difference. The Democrats evaded it in part because, in any public debate, the Employee Free Choice Act – in particular card check – can be toxic. The employer side, not labour, holds the ideological edge. Here's what they say: Card check would expose workers to union coercion – there's a television ad they've run showing the actor who played a hit man on the Sopranos asking a worker to sign an authorisation card – and deprive workers of the sacred American right to the secret ballot. That's a second difference from Australia, where, ideologically, Labor hit the Howard government so hard that it ended up cowering in the corner, even distancing itself, so I've read, from the very words Work Choices. Yet in the US the Republicans didn't push the issue during the campaign either – to the frustration of the employer side – because the labour law actually doesn't resonate much with the general public. That's a third difference.

Now that the Democrats are in power, the battle has shifted to Washington, 'inside the Beltway', as it's said. It seems unthinkable there even to consider the kind of overhaul that Julia Gillard undertook. The Employee Free Choice is just three amendments to the existing law. That's a fourth difference. Yet the opposition – the lobbying – by the employer side is both furious and unanimous. Even liberal business interests – the Pritzker family of Chicago, big in hotels, for example, that helped launch Obama financially – are opposed to the Bill. Industry's united front is a fifth difference.

And the final difference is that, although things are still unresolved, the Employee Free Choice Act is unlikely to pass in its current form – this despite a President who would sign it, a House of Representatives that would pass it, and a Senate with a big Democratic majority. The Senate is the rub, as it always has been. Under its arcane rules, it takes 60 votes out of 100 to end debate. The Democrats have 60 votes, but intense business lobbying has pealed off at least six, including the two from Arkansas, where Wal-Mart resides.

An Australian audience might find it strange that a party could sweep an election and yet not deliver on the major demand of its most important constituency, yet that is the case with the Employee Free Choice Act. And while there are lots of loose ends, the explanation is the one I've offered, that American labour law is a sub-political issue, resolved not by elections – at least not by normal elections – but by lobbying in Washington, and there, when the corporate side is really determined and united – as it is on the Employee Free Choice Act – it's tough to beat.

On reflection, I should have asked not 'how to get to here from there', but 'how to get to there from here', because if it's a question of a fair go for workers, we Americans have a lot to learn from Australia. But of course that's wishful thinking, and that's the whole point of my talk.

David Brody is Professor Emeritus of History at the University of California at Davis. He is the author of Steelworkers in America, In Labor's Cause: Main Themes on the History of the American Worker, other books and articles, and, most recently, Labor Embattled: History, Power, Rights. He is also the co-author, over many editions, of a major textbook, America's History. He has taught in the UK, in the former USSR, and for a semester in 1982 at the University of Sydney. He is regarded, along with Herbert Gutman and David Montgomery, as one of the founders of the new labor history in America. His current research includes the labor history of the Great Depression and labor law history, the latter work orientated toward the current campaign for reforming the American law.
<brodyiir@berkeley.edu>

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