||Issue No. 133||26 April 2002|
The Struggle Continues
Interview: If The Commission Pleases
History: Protest and Celebrate
Unions: A Novel Approach
Industrial: Hare Tony, Hare Tony
International: Never Forget Jenin
Politics: Left Right Out In France
Health: Delivering A Public Health Revolution
Review: The Secret Life of U(nion)s
Poetry: May Day, May Day
The Locker Room
Week in Review
Gold Star Student
Time for a General Strike?
A Humane Under-Belly
Many Australians like to see issues solely from the viewpoint of their own country. This is true, whether the issue concerns sport, culture or economics. Partly because of inclination and partly because of experience I tend to see issues from a different perspective. I incline to view them from a broader focus. Each viewpoint is legitimate. Neither has inherent intellectual ascendancy over the other.
Australia is a unique country with its own responsibilities to its own people. But it is also part of its geographical region and part of the global economy. So each viewpoint has something to contribute to the whole. At different times, each viewpoint will be accorded more or less legal and social significance.
My own experience, in seeing legal problems from a global perspective certainly did not arise either in my course in law or in economics at this University. Law, in particular, was invariably confined to a particular jurisdiction. More often than not, that meant one of the subnational jurisdictions of Australia. In most matters of private law, in the 1960s, we still lived in our colonial enclaves.
But then, shortly after my appointment to the Arbitration Commission, I was seconded to help establish the Australian Law Reform Commission. In the performance of that task, I soon became aware of the need to adopt an international perspective to law. Moreover, I came to recognise the dynamic forces of international human rights. Work in the Organisation for Economic Cooperation and Development (OECD) relevant to privacy, in the World Health Organisation relevant to HIV/AIDS and in UNESCO relevant to the rights of peoples to self-determination were a prelude to involvement in the International Labor Organisation (ILO) about which I now wish to speak.
The ILO was established in 1919 by the Treaty of Versailles . Its original Constitution (incorporated into the revised Constitution in 1946) included amongst the basic principles acceptance that "labour should not be regarded merely as a commodity or article of commerce"; that there is a "right of association for all lawful purposes by the employed as well as by the employers"; a duty to ensure "the payment to the employed of a wage adequate to maintain a reasonable standard of life as this is understood in our and country"; the "abolition of child labour" and respect for the "principle that men and women should receive equal remuneration for work of equal value" .
When it came to re-establishing these principles after the Second World War, there was added a commitment to non-discrimination:
"All human beings, irrespective of race, creed or sex, have the right to pursue both their material well-being and their spiritual deployment in conditions of freedom and dignity, of economic security and equal opportunity".
Both during its phase as an organ of the League of Nations and since its re-appearance as an agency of the United Nations, the ILO has set out to protect fundamental human rights in the context of employment. It has done this in many ways. But crucial to its efforts has been the negotiation of international treaties to set down the basic standards of behaviour to be observed by member countries, out of respect for fundamental human rights.
Australia has been a member of the ILO since 1919. It is a party to many of the conventions of the ILO. Amongst the most important of these are the Convention on Freedom of Association (No 87) ; the Convention on Collective Bargaining (No 98) ; the Convention on Equal Remuneration (No 100) ; and the Convention Against Discrimination in Employment (No 111) .
Federal governments in Australia have been fairly conservative about the ratification of ILO Conventions. In part, this has been because of specific disagreement with some of the policies contained in some of the Conventions. Thus, the Indigenous and Tribal Populations Convention 1957 (No 107) revised by the Indigenous and Tribunal Peoples Convention 1989 (No 169) was resisted by Australia because of the doubt that the subject matter fell within the competence of the ILO and of its procedures. There was also a concern in some quarters that some of the language of the instruments reflected assimilationist policies, not now adopted in Australia with respect to racial discrimination generally and the rights of indigenous peopleS in particular .
In part, the caution that has existed in the ratification of ILO Conventions has also been attributed to the federal character of the Australian Constitution and the complex, inter-related system of federal and State regulation of industrial relations. Almost without exception, under successive governments of differing political persuasions, Australia has observed a consistent policy of obedience to the international obligations that are binding on it as a nation. Whilst Australia is a party to a treaty (and without denunciation of its obligations), it takes its international duties seriously. Unlike some countries, it does not join, or remain in, international treaty systems unless it is willing to fulfil the requirements that come with the text of the treaty.
In part, the ILO Convention system has also been important in Australia for constitutional reasons because of the respective constitutional responsibilities and entitlements of the Commonwealth and of the States and Territories. The founders of the Australian Constitution did not provide to the Federal Parliament a general legislative power with respect to employment or industrial relations. Instead, it conferred a power to establish (as was soon done) a national system of conciliation and arbitration . And it conferred particular powers with respect to trade and commerce and certain corporations that have lately proved important. But there was also a power to make laws with respect to external affairs .
The lastmentioned power was recognised, quite early in the history of the Commonwealth as a valid source, through the ratification of ILO Conventions, for the enactment of federal laws. Such laws might be concerned with aspects of industrial relations that would otherwise have been thought to remain within State regulation. Back in the 1930s it might have been possible for the High Court of Australia to take a restrictive view of this head of power. It could have done so on the footing that it was granted "subject to this Constitution" and had to be read down lest, viewed expansively, the unilateral assumption of international obligations by the Federal Government could be used to dismantle the federal division of powers in the Constitution.
However, in The King v Burgess; Ex parte Henry , a majority of the High Court rejected such a narrow view. In an influential joint opinion, Justices Evatt and McTiernan made specific reference to the possible use of the external affairs power to give effect to ILO Conventions:
"And in our view the fact of an international Convention having been duly made upon a subject brings the subject within the field of international relations so far as such subject is dealt with by the agreement. Accordingly ... Australia is not 'a federal State the power of which to enter into international conventions on labour matters is subject to limitations [within the meaning of Article 19(9) of the ILO Constitution]'. A contrary view has apparently governed the practice of Commonwealth authorities in relation to the ratification of the draft Conventions of the International Labor Office. In our opinion such view is wrong".
Once this stepping stone to the acquisition of permissible subjects of federal legislative regulation was acquired, the ILO Conventions (and other treaties) took on a much broader significance than otherwise they might have done. There remained constitutional limitations inherent in the federal character of the Australian Constitution and in the High Court's duty to characterise a law as being truly one with respect to external affairs and truly one within the subject matter of an external obligation that Australia had assumed . But the lesson of the decision in Ex parte Henry was that Australia's future federal legislation, specifically in matters covered by ILO Conventions, was bound up with international law. Whatever might be the position under other national Constitutions, with different powers, and in other nations with different approaches to the ratification of international treaties, the Australian national polity was inextricably tied to freely assumed international obligations binding on the nation.
The extent to which this is still so can be illustrated by reference to the more recent decision of the High Court in Victoria v The Commonwealth . That decision upheld the constitutionality of several provisions, involving radical changes to the federal system of industrial relations, established by the Industrial Relations Act 1988 (Cth). Many of the changes in question rested on international instruments, including ILO Conventions. Most importantly, the Termination of Employment Convention 1982 (No 158) was used as a source for several provisions of the new federal Act . The High Court, in a case heard before I joined it, by the affirmative decision of six of the Justices, upheld the validity of the legislation with only minor exceptions .
Since 1996, the present federal government has, in several ways, reduced Australia's involvement in, and utilisation of, the work of the ILO. Its intention to do so was signalled during the federal election campaign that preceded the change of government . Nevertheless, like its predecessors, the present government has not altered the Australian attitude to compliance with the nation's existing commitments under international law. Indeed, a number of the provisions of the Workplace Relations Act 1996 (Cth), a centrepiece of the government's industrial relations strategy, derive their constitutionality from the external affairs power and do so by reference to relevant ILO standards .
One of the principal objects of the Workplace Relations Act is stated to be to "assist in giving effect to Australia's international obligations in relation to labour standards" . The Government elected not to denounce Australia's ratification of the ILO Convention on Termination of Employment (No 158). It did this, although there were legitimate complaints and grievances concerning the departure from normal practice when the Keating Government ratified that Convention when no State or Territory of the Commonwealth had agreed to ratification .
Despite rhetoric on both sides of politics and undoubted differences of emphasis, strategy, interest and empathy with respect to ILO Conventions and international law generally, Professor Breen Creighton has concluded that the present legislation "does not mark as dramatic a break with the previous regulatory regime as either the proponents or the opponents of the legislation might like to suggest" . According to him, the Workplace Relations Act "still draws upon the external affairs power for its constitutional underpinning."
Professor Creighton has concluded:
"International standards, especially those adopted under the auspices of the ILO continue to serve as the constitutional foundation for the legislation in several areas - notably unlawful termination of employment, equal remuneration for work of equal value, workers with family responsibilities and discrimination in employment and occupation. The government also appears to have been at some pains to maintain compliance with ratified Conventions in framing its legislative changes. It may have done so with a degree of reluctance, but it has done so nonetheless" .
No Australian judge or tribunal member should forget the important step stated in the reasoning of the High Court in Mabo v Queensland [No 2] . The Court was there faced with the question whether the common law refusal to acknowledge native title to land could still be accepted as the law, although it was so clearly discriminatory and unjust. In his reasons, which were endorsed in this regard by Chief Justice Mason and Justice McHugh, Justice Brennan pointed out :
"The opening up of international remedies to individuals pursuant to Australia's accession to the Optional Protocol to the International Covenant on Civil and Political Rights brings to bear on the common law the powerful influence of the Covenant and the international standards it imports. The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights. A common law doctrine founded on unjust discrimination in the employment of civil and political rights demands reconsideration. It is contrary both to international standards and to the fundamental values of our common law to entrench a discriminatory rule ...".
This principle is not, of course, confined to the International Covenant on Civil and Political Rights. It is one of general application. It extends to international law as declared by other binding treaties, certainly those to which Australia is a party. It therefore includes the international Conventions of the ILO which Australia has ratified.
Where the common law has no exact precedent, where a statute is ambiguous and, in my view, where the Constitution yields competing interpretations, universal principles of international law may be used to resolve the judicial uncertainty . Use of this principle with respect to constitutional interpretation may still be controversial. But use of it in the elucidation of common law principle and the ordinary functions of statutory interpretation is, in my view, wholly orthodox. The common law application is expressly endorsed in Mabo [No 2]. The use in elucidating ambiguous statutory language is conformable with a longstanding principle of interpretation that attributes to parliaments a purpose (in the absence of clear and express language to the contrary) to respect and uphold the fundamental civil rights of the people .
In Australia, industrial relations courts and tribunals have already made use of this approach in exercising their jurisdiction and discharging their powers. Thus in Re Equal Remuneration Principle , five members of the Full Bench of the Industrial Relations Commission of New South Wales made explicit reference to the fundamental principles of human rights in the course of their reasoning. By that decision, the Full Bench established a new equal remuneration or equal pay principle intended to provide remedies for gender affected under-valuation of wage and salary rates involving workers in the State of New South Wales subject to the jurisdiction of the Commission. In the course of giving its reasons, the principle enunciated was founded squarely on a human rights approach. I am aware of no more explicit recognition by an industrial tribunal in Australia of the significance of international human rights norms for Australian industrial relations law and practice.
The following paragraphs in the reasons of the Full Bench explain what was done :
"Every person has a basic human right to be treated equally and fairly in the sense that the person should not be dealt with on the basis of irrelevant considerations such as the person's sex, race or age and with a right not to be discriminated against by reference to such considerations ... This right is reflected in various statutory provisions in New South Wales. The fixing of a rate of pay for, or the payment of a wage or salary to, a women where that rate of pay, salary or wage has been fixed differently because of the woman's sex is presumptively an infringement of her human rights and inconsistent with the provisions of the 1996 Act.
The right of women to equal treatment irrespective of their gender generally and specifically in relation to the question of equal pay is also recognised, essentially for the purpose of the protection of the right, by a variety of international covenants ...
The statutory provisions which are particularly relevant for our consideration in the present proceedings are provisions which exemplify human rights and the human rights concepts and which protect or enforce such rights. Both the High Court and the Human Rights and Equal Opportunities Commission have emphasised the special responsibility of courts and tribunals, in construing such legislation, to take account of and give effect to the statutory purpose whether found in a statutory object or otherwise".
Later in the Full Bench's reasons appears the following paragraph :
"We have concluded that it is appropriate to adopt a principle, albeit not one in the terms proposed by the various parties, which deals with the issue of equal remuneration. We have done so for a number of reasons. The first is the considerations we have earlier referred to. That is the significance both in policy terms and the requirements of the Act ... reflecting as they do important human rights, and that wage fixing principles in relation to the question of equal pay reflect the priorities, importance and the failure hitherto of some awards to address appropriately the issue of equal pay for equal or comparable work ...".
An illustration of the way in which principles of human rights can inform and influence construction of legislation may also be seen in a decision of the Federal Court of Australia in Italiano v Bethesda Hospital . The case concerned discrimination and harassment at work. It raised the question whether the hospital, as employer, had unlawfully terminated a worker's employment in contravention of the Workplace Relations Act 1996 (Cth) . The hospital's defence was that the applicant had resigned of his own volition. The evidence suggested that he had done so in reaction to persistent harassment that he had suffered from other staff of the hospital.
Mr Bill Italiano was employed as a part-time chef at the hospital. Six months after commencing that employment he disclosed to other staff members that he was homosexual. From that time until his employment ceased two years later, it was found that he was subjected to "ongoing and systematic harassment" on the grounds of his sexual orientation, (called in the applicable federal legislation his "sexual preference"). The harassment ranged from derogatory name-calling, to mocking the applicant with "extreme mannerisms" in a "derogatory representation of a homosexual male" . In one incident, Bill Italiano was locked in a cupboard. He was told "now you are going back in the closet". He alleged that this conduct continued in spite of his objections. The evidence established that he was significantly affected by the harassment. Medical evidence was brought that his poor relationship with his manager, Ms Harberger, had contributed to ongoing depression. It was found that he eventually resigned as a result of the harassment.
The Judicial Registrar deciding the case concluded that, for the purposes of the Act, Bill Italiano fell within the phrase "termination at the initiative of the employer" . Of course, a narrow construction of that phrase would have warranted the conclusion that Bill Italiano's termination was on his own initiative. But a broad construction would bring him within the protection of the Act. In deciding between the narrow and the broad, the Federal Court has held it to be legitimate to take into account the purposes of the legislation. Where a person is driven to resign, so as to terminate intolerable conduct caused or sanctioned by an employer, it has been held possible to classify the cause of the termination as the antecedent conduct, not the act of resignation to which that conduct gives rise .
When the high importance of upholding the purposes of the protection of human rights and fundamental human dignity expressed in the legislation are kept steadily in mind, the adoption of a broad interpretation may more accurately carry into effect the protective legislative purpose. The adoption of a narrow construction would frustrate the achievement of the objects of Parliament. Where those objects are designed carry into effect in Australian domestic law, ILO or other Conventions having a high human rights purpose, it is not unreasonable to prefer the meaning that accomplishes such purpose over that which would frustrate and obstruct its attainment.
It is sad indeed, in this day and age, to read a case such as that involving Bill Italiano and his workmates at the Bethesda Hospital in Richmond, Victoria. That such irrational conduct could still happen strikes me as appalling. That it could happen today in Australia, the land of the "fair go", is astonishing. Those who say that there is no need for legal protection against such conduct have never themselves been on the receiving end of cruel harassment, denigration and humiliation. But many women have. Many Aboriginal Australians have. Many people of non-European race have, and not only in South Africa. Many of minority religions have. Many homosexuals have. Many living with HIV and AIDS have . Some have suffered on the grounds of age . Others by reason of disabilities irrelevant to their work performance.
Discrimination of such kinds can manifest itself in almost every aspect of life. But in so far as it appears in the context of employment, fundamental issues of human rights and human dignity are presented. To do nothing may be to accept the intolerable. A just society, as I believe Australia to be, will not permit such wrongs to go unanswered whether at work or anywhere else. Statute and the common law will respond. Where the law permits it, the courts and tribunals of the nation will uphold the principle of justice protecting individual human rigths and human dignity.
The influence of ILO Conventions in our polity will wax and wane. The utilisation of their principles in Australian law will vary over time. The greatest challenges for the ILO lie not in countries such as Australia but in lands where even the rudimentary rules of human rights are not obeyed and where minorities are killed or suffer other most grievous deprivations. In such countries, as I believe my mission to South Africa showed, the ILO still plays a most useful role. In the field of industrial relations, its Conventions and standards afford a stimulus to industrial justice that is truly beneficial.
In Australia, the human rights standards of the ILO and those stated in other international instruments will play a lesser role, simply because our representative democracy and independent courts and tribunals will generally ensure that, ultimately, industrial justice is attained. The growth of global and regional markets makes it likely that, in advanced societies and developed economies the global principles of human rights will continue to influence to some degree our own industrial relations law. In a sense, the one is a counterpart of the other.
Of course, there will be plenty of room for political debate and difference of opinion concerning the extent and content of that influence. But the great lesson of the new century, already taught, is that no nation today can totally go it alone. Now, truly, no land is an island, entire unto itself. The days when Australia could hide behind tariff walls cocooned in the national system of compulsory arbitration have gone forever. Yet in opening up our borders to the forces of international trade we inevitably open them to the influence of other international ideas and forces. Amongst those ideas are those in the ILO Conventions. And amongst the most powerful ideas affecting our planet at this time are those that assert the common obligation to respect and defend fundamental human rights and human dignity in all aspects of life .
The scene of industrial relations has changed markedly since Kingsley Laffer taught the subject at this University half a century ago when I was here. But the quest for justice and human dignity in work, as in other human activities, is even more powerful today. And some of the power comes from the global dynamic of universal human rights.
There are those who dislike this message and wish to have nothing to do with the ILO and its works. But with global markets come global forces of basic rights. This is what China is discovering as Russia and other nations did earlier. And the lesson is universal. It is even relevant to Australia.
Kingsley Laffer would be surprised if he could see the world of industrial relations today. The diminished role of the tribunals and their awards. The heightened concern with the workplace enterprise. The renewed attention to conciliation and agreement. The falling membership of industrial organisations. Calls for a return to the ordinary courts, applying the general law. And so on. Yet I do not think he would be specially puzzled by the changes. After all his discipline was always an intensely practical one. It always responded to the changing moods of politics. And in the end it was always about securing the best possible outcomes to the struggle between economic profit and industrial justice: two wild horses locked together in a harness that commits them to eventual harmony and a common direction. Now they gallop in a global arena sniffing the breeze of global forces. For industrial relations today, the venues of Australia are no longer big enough.
This is an editted version of the Kingely Laffer Lecture delivered on Tuesday April 22 at the University of Sydney. A full version of speech can be found at http://www.acirrt.com
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