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Issue No. 230 23 July 2004  

Kill the Lawyers
What’s left of the HR Nichols Society must be popping the champagne this week, with a NSW court ruling that sees the triumph of their 20-year battle to kill industrial relations and replace it with a ‘rule of law’.


Interview: Power and the Passion
ALP's star recruit Peter Garrett shares his views on unions, forests and being the Member for Wedding Cake Island

Unions: Tackling the Heavy Hitters
Tony Butterfield became a State of Origin gladiator at the unlikely age of 33. Even that, Jim Marr reports, couldn’t prepare him for the knock-down, drag-em-out world of modern IR.

Industrial: Seeing the Forest For The Wood
Proposals to flog off NSW’s forests have raised eyebrows and temperatures amongst some of the key players reports Phil Doyle.

Housing: Home Truths
CFMEU national secretary John Sutton argues for a radical solution to the housing affordability crisis.

International: Boycott Busters
International unions have issued a new list of corporations breaching ILO sanctions to do business in Burma.

Economics: Ideology and Free Trade
The absurdities of neoclassical economic assumptions has never stood in the way of their being trotted out to justify profiteering and attacks on the rights of citizens. The AUSFTA is the latest rort we are supposed to swallow, writes Neale Towart.

History: Long Shadow of a Forgotten Man
Interest in JC Watson's short time as Labor's first Prime Minister should not detract from his more substantial role as Party leader, writes Mark Hearn

Review: Chewing the Fat
As debate rages in Australia about Fast Food advertising, Julianne Taverner takes a look at a side of the industry that Ronald McDonald won’t tell you about in Supersize Me.

Poetry: Dear John
Workers Online reader Rob Mullen shares some personal correspondence with our glorious leader.


 Vandals Hit Sweat Shoppers

 Blow For Union Busters

 Poll Rocks Election Boat

 It’s Official: Eggs Come Second

 Tetra Packs Private Dick

 Workers Demand Act of Contrition

 Wollongong’s $4000 Hamberger

 Company Pays for Casual Affair

 Shame Ships Hide Sausage

 First Test for Death Law

 Convenience Store Detains Student

 Bashed Youth Workers Walk

 Un-Fairfax Leads Paper Chase

 Nile On The Death Law

 ACCC Lays Down Council Code

 Activists What’s On!


The Westie Wing
As the NSW Labor Government sells its first budget deficit in nine years, the real concern for the union movement is the devil in the detail, especially when it comes to procurement agreements, writes Ian West.

The Soapbox
Rubber Bullets
Labor's IR spokesman Craig Emerson launches a few characteristic salvos across the Parliamentary chamber

The Locker Room
Tears After Bedtime
Phil Doyle says that it's all fun and games until someone loses an eye

Postcard from Vietnam
APHEDA's Hoang Thi Le Hang reports from the north of Vietnam on a project being fund by Australian unionists.,

 End Poverty
 The Agony Of The Refugee
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Kill the Lawyers

What’s left of the HR Nichols Society must be popping the champagne this week, with a NSW court ruling that sees the triumph of their 20-year battle to kill industrial relations and replace it with a ‘rule of law’.

That's the upshot of this week's ruling by the NSW Court of Appeal that employment contracts have become so complex that the Industrial Relations Commission no longer has the expertise to deal with them.

It is an argument bizarrely circular in its logic - it goes something like this.

The industrial relations jurisdiction was established to provide cheap, practical, negotiated settlements to workplace disputes free from the formal bonds of black letter law.

Industrial commissioners and advocates were traditionally practitioners rather than professionals, able to nut out a conciliation by banging heads together and delivering an arbitrated outcome where necessary.

The system hummed along for the best part of 100 years delivering practical outcomes with bipartisan support until the neo-conservative ethos of union busting was imported into this country.

The prime attack weapon was the 'rule of law' - advocating for a legislative change to the Trades Practices Act and corporations laws to shift employment and industrial matters out of the tribunals and into the courts.

The logic was venal, in tribunals the settlement was invariably a compromise, in the courts it was winner takes all. And with laws in your favour and the greater legal firepower that the wealthier party brings to the table, the odds suddenly shifted in favour of the boss.

With the arrival of the Howard Government and the Workplace Relations Act, another part of the jigsaw was put in place - actually weakening the industrial tribunals so that they could no longer force parties to the negotiating table, allowing them to wage wars of attrition with the support of hefty damages claims through the courts.

At the same time more and more workers were shifted from common award and enterprise agreements onto contractual relations - even if they were template AWAs.

Through this 'reform' process the legal fraternity was much more than a silent partner - no one can spot a loophole or business opportunity better than a lawyer and an industry of employment practitioners emerged overnight - not just to represent business but to shape the environment in which they operate.

Thanks largely to the Carr Government, NSW tribunals were not emasculated but retained a place where justice could prevail over these power relations.

In fact the industrial jurisdiction has extended so that workers whose conditions were set by contract, but were really just employees, could also avoid costly court litigation.

While it is true that some high-fliers have taken advantage of this part of the NSW unfair contracts jurisdiction - and the Solution 6 executive whose case sparked the current judgement may be one of those - it has become an essential part of the NSW industrial relations framework.

But after this decision, we now we have the proposition that if your contract is complex enough, it will outside the jurisdiction of the IRC - instead you'll need to trot off to the Supreme Court QC in tow.

While this may be where Mr Solution 6 should have gone in the first place, it is not a good outcome for average Australians on contracts.

It is however a good decision for lawyers, union-busters and employers who believe they are a law unto themselves.

If the industrial relations jurisdiction is to survive, Labor governments need to build a strong fence around it quickly before the legal fraternity and the captains of industry they serve pull out their next trick to erode a system that is just too fair for their liking.

Peter Lewis



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