Wright, Lance --- "Foreword" [2006] UNSWLawJl 1; (2006) 29(1) UNSW Law Journal 1

FOREWORD

THE HON JUSTICE LANCE WRIGHT^[*]

It is fitting that the thematic issue of the University of New South Wales Law Journal for 2006 has as its theme ‘Industrial Relations Law’, as 27 March 2006 marks the date of the coming into force of the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (‘WorkChoices Act’). Ironically perhaps, this year also marks the centenary of the enactment of the Commonwealth’s Excise Tariff (Agricultural Machinery) Act 1906, the statute that led to the 1907 Harvester judgment of Mr Justice H B Higgins.[1]

At the time of writing this foreword,[2] the media – or at least the more sophisticated end of the media spectrum – is reflecting in a tentative way on the implications for the community of the WorkChoices Act. Some recent examples are telling. In the Easter Weekend Edition of the Sydney Morning Herald, an article written by the religious affairs reporter from the Age, Barney Zwartz, discussed the idea of faith in contemporary Australia. It quoted Dr John Falzon, the St Vincent de Paul’s Society’s National Director of Social Policy, asserting his belief that the federal Government was leading the Australian people towards an individualistic vision, rather than the older notion of a common good, and that even despite this, Australians have not abandoned their ethic of ‘a fair go’, with people still volunteering and involving themselves in charitable pursuits.[3]

The experienced journalist and social commentator Deirdre Macken, in her weekly column ‘Relativities’ in the Financial Review, contributed an article that reflected on how perceptions of employer and employee rights are changing, even in suburban workplaces, as a result of the publicity being generated by the new federal legislation, when the participants’ practical knowledge is often based on limited knowledge such as that gleaned from newspaper headlines.[4] ABC Radio National broadcast a two part historical feature entitled ‘The Rise and Fall of the 8 Hour Day’.[5] The occasion for this program was the 150^th anniversary in 2006 of the stoppage of work by stonemasons on the site of Melbourne University on 21 April 1856, which led to them becoming some of the first workers in the world to achieve the eight-hour working day, and which led to the eight-hour day being gained in Australia.

Professor Michael Quinlan, Professor in the School of Organisation and Management of this university, also contributed an opinion piece to the Sydney Morning Herald’s series of articles on workplace safety and young workers.[6] Professor Quinlan, probably Australia’s leading academic researcher in occupational health and safety, propounds the case that young workers are at particular risk of suffering a workplace injury or illness and this arises from a combination of factors: they lack general work experience; are more likely to be new to the job and therefore unaware of formal and informal safety procedures; and are also less likely to be aware of their rights under relevant legislation or to be confident about exercising those rights. Further, there are risks associated with the types of employment arrangements young workers commonly have since, although approximately one quarter of the workforce is employed on a causal basis, the figure for those aged 16 to 19 years is about 60 per cent. His contention is that young workers face a ‘double or triple jeopardy’, which has seldom been acknowledged or addressed by employers, Government and occupational health and safety professionals and, significantly for present purposes, that ‘[the] new federal industrial relations legislation is likely to exacerbate the vulnerability of young temporary workers by removing award protections and encouraging individualised bargaining … few young workers will be in a position to ‘bargain’ with their employer and they will feel even less confident about raising occupational health and safety concerns for fear of losing their job.’[7]

It is inevitable that any thematic treatment of ‘Industrial Relations Law’ must now have as its centrepiece the new federal legislation, and this important collection does precisely that. However, the significance and usefulness of the present collection of essays is the range of perspectives it provides, both conceptual and, in part, historical. The various essays situate the new legislation, which will be less than two months old when the volume goes to press, within its broader legal and societal context.

The editor is to be congratulated on the choice she has made of authors to contribute to this volume. The various papers demonstrate the diversity and significance of the issues arising from the WorkChoices Act and graphically illustrate the profound effects it will have for not only Industrial Law and industrial relations, but also for Australian values.

Associate Professor Greg Patmore, one of Australia’s leading Labour historians, provides an historical and ‘comparativist’ insight into the way in which employee representation has operated in Australia, the likely effect on employee representation of the new legislation and how the legislation seems to represent the playing out of trends reaching back to the late 1 980s.

Professor Brian Brooks, formerly of this university but currently residing in South Africa, also brings the perspective of the ‘comparativist’, but more particularly that of the comparative Labour lawyer. Brooks provides an interesting insight in suggesting that constant implementation of ‘reform’ in labour law ‘points to the operation of the law of unintended consequences’, concluding that ‘it is clear that old wine is being decanted into new bottles with no certainty that the process will produce better or more mature wine.’

I am very pleased to see the inclusion in this collection of the important paper by my colleague, the Hon Justice Michael Walton. His paper deals with the New South Wales Industrial Relations System, paying particular attention to developments from 1998 to the enactment of the WorkChoices Act. His Honour provides a detailed analysis of the strengths of the New South Wales system drawing, as it does, upon its inheritance of the strengths of the common law legal system, its similarities to other industrial tribunals, as well as its differences, especially its highly developed jurisprudence in the field of occupational health and safety law. There is also identification of the likely sources of the controversy created by the WorkChoices Act and of relevant areas for necessary further research and debate. Reference is also made to the likelihood of significant legal complexity arising from WorkChoices and the resulting ‘bonanza’ for the legal profession.

Professor Peter Saunders of the UNSW Social Policy Research Centre analyses the social policy implications of the current industrial relations ‘reforms’, observing that the traditional Australian system of industrial relations was the cornerstone of an approach to economic and social policy that combined material prosperity with social justice and protection of the disadvantaged; and that the possible destruction of the structures of this system will have effects that are ‘uncertain and largely unknown’. Saunders’ paper ends on this note:

Yet even the economic impact of the WorkChoices reforms is uncertain, while the social implications have largely been ignored in the run-up to its implementation. Yet these aspects pose a more fundamental departure from the past, giving rise to potentially more damaging consequences. At the very least, we need to monitor the impacts of the reforms on employment, living standards and inequality, so that we have a basis for better determining future policy.

Saunders’ point is most important: that there is a major need for Australian policy-makers to monitor the impact of the effect of the legislation not only on the institutions and structures it is intended to replace but also on employment, common living standards and inequality. There seems to be little evidence that any government agency is preparing to do anything of the sort.

The Hon Paul Munro’s paper represents a comprehensive consideration of the impact of pending changes to the federal and State industrial relations systems and argues that the package is a ‘counter-revolutionary reversal of egalitarian and collectivist values institutionally embedded since Federation.’ Munro brings to his analysis many decades of experience as an industrial lawyer, senior trade union official and member of the Australian Industrial Relations Commission for 18 years. He provides not only an important ‘insider’ perspective but also impressive scholarship in his powerful analysis.

Dr Joellen Riley, who soon after the publication of this volume will move from the Law faculty of the University of Sydney to that of the University of New South Wales, considers the WorkChoices Act as a further step in the progressive re-regulation of employment relations in Australia, away from collectively based strategies for determining workplace rights towards a focus on the individual employment relationship. Contract law will be called on to do much more in the field of workplace relations following the enactment of the new federal law. Strikingly, Dr Riley observes that the effectiveness of contract law in ensuring fair dealing in workplace relationships will depend very much on the ability of the (mainstream) judiciary to return to the fundamental principles of contract law.

Joel Butler from Bond University provides a comprehensive paper analysing the effect of minimum wages on employment levels. He argues strongly against the critics of the WorkChoices Act and contends that there are clearly circumstances where the lowering of the minimum wage can lead to increased employment, suggesting that the evidence for his conclusions is ‘overwhelming’. Butler’s articles concludes on the notes that the federal minimum wage has ‘disemployment and unemployment effects’ and that these effects are experienced largely by the most vulnerable categories of workers. This paper shows the work that is still to be done in the area and thus provides a useful starting point for the answer to, what some may say, is the more important question: that is, the effect of increases in the Award Wage Safety Net on employment levels: a request that the AIRC, over many years, made of the parties before it in Safety Net proceedings, including the Commonwealth Government, without receiving a satisfactory answer.[8]

Cooney, Howe and Murray (from Melbourne and La Trobe Universities) examine whether the WorkChoices Act is an example of sound regulatory practice and is likely to address the key social problems associated with work in Australia in the early 21^st century. Their conclusions are that the legislation fails both of these tests and that it is largely directed at increasing the discretionary power of employers. They mount a strong argument that the private law of employment is insufficient, of itself, to deliver decent work and that public regulation of the employment relationship is also required.

The collection also provides two detailed analyses of the legislation from a constitutional law perspective. The incisive analysis of the legislation by Darrell Barnett (from Freehills and UNSW) traces developments in the High Court’s approach to constitutional characterisation. Barnett accepts that the WorkChoices Act represents a fundamental shift in workplace relations for the people of Australia and that its constitutional significance lies primarily in the attempt to utilise the corporations power to establish an exclusive regime for determining the employment conditions of a majority of the Australian workforce. However, he contends that if the validity of the legislation is gauged by reference to well established and orthodox principles of constitutional interpretation, that is likely to result in the bulk of the legislation being upheld. Nevertheless, he does illustrate a number of areas where the constitutionality of the legislation may be open to question.

Professor Greg Craven of Curtin University provides the other constitutional perspective. His perspective pays greater regard to broader governmental and related policy issues. The challenge he lays out is stark:

The potential of these realities would be to usher in a period of ‘opportunistic federalism’, under which the Commonwealth would be free to cherry-pick those areas of activity which it chose to regulate. These choices often would be made not primarily on the basis of specific constitutional responsibility, or indeed settled policy objectives, but rather by reference to impermanent considerations of political advantage and convenience. Under such a regime, the position of the States would be substantially undermined by Canberra in an on-going and random manner. Australia doubtless would continue to be a federation, but one in which the federal balance was a political calculation to be made on a weekly basis.

I am not of course seeking to suggest that Craven’s article lacks sophisticated legal analysis. It does not. Its strengths seems to me to lie in the close analysis of the challenge made and his prediction that at least some members of the High Court may be troubled by the new legislation leading to the potentially unlimited capacity of the corporations power to be used to effect any regulatory object, no matter how far it might otherwise be removed from the Commonwealth’s purview. Craven’s direct challenge is to those who consider themselves at the conservative end of the political spectrum. He argues that, in terms of federal theory, the use of the corporations power to implement the current program of industrial relations reform represents ‘an historic breakdown in the traditional support of Australian conservatives for the concept of federalism’ as that ‘support has been based on a deeply-held view that federalism is to be defended as a prime expression of the conservative attachment to checks and balances as a means of limiting power … [and that the] … critical result of this basic shift in conservative opinion has been to leave federalism deeply politically exposed as a constitutional value … [with] … enormous implications for the viability of Australian federalism in the long term.’ The new changes have been referred to as the ‘Americanisation of Australian labour laws’[9] and, if that portent is accurate, then it foreshadows a major cultural shift in the nature of the relationship between Australians and their work. In the United States, developments are occurring which would hitherto have been unimaginable in Australia. For example, Oprah Winfrey is campaigning on her television programme for an increase in the minimum wage[10] and the New York Times economics writer Louis Uchitelle last month published The Disposable American: Layofs and Their Consequences, described by the publisher as ‘an eye-opening account of layoffs in America – their questionable necessity, their overuse, and their devastating impact on individuals at all income levels. Yet despite all this, they are accelerating.’[11]

The new legislation has already given birth to a number of important books. Among the first are important scholarly works by Professor David Peetz of Griffith University and the staff of the Discipline of Work and Organisational Studies at the University of Sydney.[12] There is no doubt that this volume will join that distinguished company, but with its greater emphasis on industrial or labour law, it will make an important contribution to the necessary reconsideration of Labour Law and industrial society in this century, irrespective of the outcome of the proceedings in the High Court.

I conclude on this note. Six years ago I gave a presentation at the University of Sydney on legal aspects of the ‘Changing World of Work’; at the time I observed that a country’s system of labour law and industrial law says quite a lot about the nature and quality of the kind of society that the country has, or that it aspires to. That observation is as valid now as it was six years ago. Indeed, in the light of the new WorkChoices Act, perhaps it is even truer today than it was then.

The relevant issues will, in part, be played out in the High Court proceedings which are likely to deal with fundamental issues concerning the federal compact, the ongoing controversy the legislation has generated as to the role of the State in the regulation of work and the creation or limitation of rights in the workplace. No doubt, the controversy generated by the legislation will continue for many years notwithstanding the High Court’s conclusions as to the legislation’s validity.

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[*] President of the Industrial Relations Commission of New South Wales.

[1] Ex parte H V McKay [1907] CthArbRp 12; (1907) 2 CAR 1 (‘the Harvester Case ’).

[2] The Easter - Anzac Day period.

[3] Barney Zwartz, ‘We’ve Got to Have Faith’, Sydney Morning Herald (Sydney), 14–16 April 2006, 15.

[4] Deirdre Macken, ‘For young workers it’s gloves off in the IR battle’, The Weekend Australian Financial Review (Sydney), 13–17 April 2006, 41.

[5] ABC Radio National, ‘The Rise and Fall of the 8-Hour Day’, Hindsight, 16 & 23 April 2006.

[6] ‘YOUTH: an occupational hazard - A HERALD INVESTIGATION’, Sydney Morning Herald (Sydney), 24 April 2006, 1, 4, 5.

[7] Michael Quinlan, ‘Double whammy under new industrial laws for the young worker’, Sydney Morning Herald (Sydney), 24 April 2006, 11.

[8] See, eg, Safety Net Review - Wages, June 2005 (2005) 142 IR 1, 56.

[9] See, eg, Steve Burrell, ‘Plenty of Cheques, Few Balances for these Plum Jobs’, Sydney Morning Herald (Sydney), 21 January 2006, 51; Adele Horin, ‘No Truth or Justice in doing all it the American Way’, Sydney Morning Herald (Sydney), 29 October 2005, 33; Carla Lipsig-Mumme, ‘Return to the Dark Ages’, The Age (Melbourne), 11 October 2005, 11.

[10] The minimum wage issue was featured on The Oprah Winfrey Show in April 2006: ‘Inside the Lives of People Living on Minimum Wage’, Oprah Winfrey Show, 14 April 2006 <http://www2.oprah.com/tows/pastshows/200604/tows_past_20060414.jhtml> . The full transcript is available at Think Progress <http://thinkprogress.org/?tag=Minimum+Wage> .

[11] Louis Uchitelle, The Disposable American: Layofs and Their Consequences (2005). This book is apparently not yet available in Australia. See the full page advertisement in The American Interest - A Review of Policy, Politics & Culture (2006) Vol 1(3) and the information on the Random House Inc. website which includes an excerpt concerning layoffs at the Stanley Works in New Britain, Connecticut.

[12] David Peetz, Brave New Work Place: How Individual Contracts are Changing Our Jobs (2006); Mark Hearn and Grant Michelson (eds), Rethinking Work: Time, Space and Discourse (2006).