||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?
If The Commission Pleases
Interview with Peter Lewis
If you had to give the story of the IRC's first 100 years in a sentence, what would it be?
It is a story of change and development. The members of the then Court in 1902, who were sworn in in the Banco Court on 30th April 1902, when the Registrar announced that the Commission was open for business, would not recognise the Court today.
The first case was a case heard leisurely over about four or five days in Newcastle. That is an unusual way for a case to proceed these days. Those learned gentlemen, and of course they were all men, wouldn't recognize the cases we hear today. The idea of having an equal remuneration principle - the idea of having a workforce, in effect half of which are women, holding not only jobs at every level of the occupational hierarchy, but including membership of the Commission, would be unknown to them. The significant thing is that the Commission over this time has shown enormous resilience and an ability to adapt itself to the practical needs of the citizens of the State, be they employees or employers, be they individuals or corporations.
What is your view on the climate for IR today? Even at Sydney University, the Department of Industrial Relations has become the Department of Work and Organisational Studies. What does that mean for your tribunal?
I don't know that there is that much significance in the change of names. I think that the greater significance is that the role of the Commission has adapted in two basic ways. One is that it has a much more diverse jurisdiction than it had in 1902. It was a more traditional industrial jurisdiction - conciliation and arbitration; disputes and awards affecting unions and employers. That is still most important part of the Commission's functions and jurisdictions. But today the Commission has a greater range and variety of other work such as occupational health and safety prosecutions, unfair contract claims, unfair dismissal claims on a large scale. And of course all this extra varied work informs the general - the main work of the Commission - the traditional conciliation and arbitration.
This is a different situation to that in 1902. The role and attitude of workers and employers to safety is profoundly different, and that reflects the fact that the ordinary member of the public is not prepared to accept that people should go to work and run the risk of not coming home, because they are killed at work or are seriously injured. The ordinary person in the street does not accept that that is appropriate, and as a result governments have, over the years enacted important laws that this Commission has an important role in administering. That informs our work in industrial disputes and other industrial matters.
But another significant change comes in the way the tribunal is regarded. Traditionally, it was thought that employers and unions took the view that if they didn't have a final responsibility to resolve their own differences. They could leave disputes to a tribunal to deal with and determine. I think that is probably a vast over-simplification of the history of industrial legislation in this country. The role of the tribunals in promoting and facilitating agreement was always great and there was a de facto collective bargaining situation under the aegis of the industrial tribunals. But even so, the tribunals are more conscious of their role in emphasising to the parties their responsibilities to themselves solve their industrial difficulties, to order their own industrial and employment affairs, and the Commission's role is more of a facilitator, a protection role, or a point of last resort.
In recent times the jurisdiction of the Commission is in effect shrinking with the spread of contract labour. Do you see an extension of the sort of principles around owner-drivers leading to an expanded coverage for the IRC of the workforce?
As a consideration of the history of the regulation of owner-drivers for shows, there were enormous difficulties of doing that in the traditional framework. It could only occur when there were quite significant changes to legislation. Changes, which I think occurred about 20 to 25 years ago, and which history would have shown, have worked very successfully.
So to a large extent, but not entirely, this will depend on whether government and parliament considers the legislation should change. But if you look at the academic commentators - I'm talking about the ones who really have their finger on the pulse, such as Ron McCallum at the University of Sydney - they see this area of the changing nature of the workforce, contract labour and so on, as the real challenge for industrial law in the future, and I suppose it is a question of whether governments agree with that approach and make legislative changes accordingly.
It is certainly the case that the Commission has the expertise and the history of a demonstrated capacity to deal with these areas, so that it could take on any changed jurisdiction appropriately. But that is essentially a policy matter and a matter for the politicians and the government of the day.
Of course, we have the Federal / State split in industrial relations, and in a lot of the significant cases like wage cases, the State tribunals have tended to follow the decision of the Federal tribunal. Do you see a point at some point where the NSW Commission would go it alone on those sort of issues?
I don't know that that is a useful way of approaching it. Significant cases have occurred in the State jurisdiction in my working lifetime as an industrial advocate, union official, and industrial lawyer - mainly as a barrister and Queens Counsel. Significant changes which have impacted on working conditions Australia-wide, occurred in the NSW jurisdiction. Double time and a half for public holidays first occurred in NSW. I remember the case being run, I think in the early seventies. Accident pay, which was also an important issue. Revision of the way in which shift allowances were handled. I think when you say that the federal jurisdiction has taken the running on wages, certainly in what used to be National Wage Cases, that is right, and the way in which we deal with those matters is to a large extent governed by the legislation.
But industrial tribunals are somewhat like the courts. That is, they can only decide the cases that are paced before them by the parties. They don't decide what cases come, and so the Equal Remuneration Principle case came to the Commission as a result of an application. We decided it in accordance with what the Commission considered the Act required us to do. In fact, I note with pride that his Honour Justice Kirby referred to it as an important decision tonight, and in fact discussed it in some detail in his paper - and the first case under that principle was heard and determined recently. It is an important case, and it should be read by people who practice in the field of industrial law and industrial relations, whether they practice in our jurisdiction or others.
But again, we weren't deciding that case to decide principles, we were deciding that case to decide issues posed to us by the parties before us. The parties in that particular case ran it very well, in a very efficient way and the issues were dealt with in a very efficient way and where agreement could be reached it was. It is a compliment, I think, to the way in which the Commission imposes very high expectations on the people who practice before it, whether they be professional advocates such as lawyers, or experienced union officials or employer advocates - we have a multitude of all of those appearing before us - and the way in which they respond positively to expectations we have.
That touches on another question I have for you, which is one of the great strengths of the Commission has been its ability to get things done. But there have been some murmurings about the legalistic nature of the current Commission. What is your response?
I have only heard this second or third hand. I must say I was a bit surprised because I don't think it is right. In fact I think the most legalistic people are usually what might be jokingly referred to as the bush lawyers. Someone said a worse thing than ignorance is a little knowledge. I don't think the murmurings arre right. There is a degree of formality but I wouldn't have thought this would be described as legalistic.
We have users groups which meet regularly and after a period in which we were concentrating on the Section 19 Reviews, where we didn't meet with the overall users group, but with particular parts of it, focused on the Section 19 Review, we are going to return to the more traditional model of consultation and that will provide an avenue for these matters to be raised and discussed in a very open environment.
Could I just add to that that there are mechanisms - informal consultative mechanisms - where as President of the Commission I am prepared to meet with the major players in the industrial relations situations, that is representatives of both the employers and the unions. If there are matters of real concern of that kind, or any other matters which could be discussed in that informal way, I would always be willing to meet at short notice. I think our responsiveness to those concerns has been well known, both through my presidency, that of my predecessors, Justice Fisher and Sir Alexander Beattie, and as I said, I welcome any approach that could be dealt with, with both sides of the record so to speak.
Finally, just looking into a crystal ball, what sort of cases do you think the NSW IRC will be hearing in 100 years if it is still around?
I don't know that I have thought that far ahead. I think the most significant lesson is the one I raised earlier, that our forebears of 100 years ago would have had no idea of what we would now be doing. They wouldn't recognise what we do, and be quite surprised that we have women members. I am focusing on the next few years and looking forward to continuing running an important institution, which I think makes a valuable, and often unnoticed contribution to the welfare of the ordinary member of society. It will change if Parliament wants it to change. In a real sense we are a barometer of that situation. As I said, I am looking at the immediate future.
I suspect that there will however be fewer industrial cases of the traditional kind, because so much is achieved by agreement between the parties themselves, or with our assistance. But although there will be fewer cases they will be more difficult, they will be more time consuming and they will need greater foresight and planning. The Commission is well equipped to do that, but of course what it doesn't have is the kind of notice that the recent practice direction I've published is designed to achieve. But in a real sense, it is up to the parties to respond to our practice direction and give the Commission greater notice of the cases they regard as important.
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