||Issue No. 230||23 July 2004|
Kill the Lawyers
Interview: Power and the Passion
Unions: Tackling the Heavy Hitters
Industrial: Seeing the Forest For The Wood
Housing: Home Truths
International: Boycott Busters
Economics: Ideology and Free Trade
History: Long Shadow of a Forgotten Man
Review: Chewing the Fat
Poetry: Dear John
The Locker Room
The Agony Of The Refugee
Kill the Lawyers
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.
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