Interview: Under Fire
Politics: And the Winners Are ...
Economics: The Common Wealth
History: Walking for Justice
International: Deja Vu
Legal: The Rights Stuff
Review: That Cinderella Fella
Poetry: Is Howard Kidding?
The Locker Room
Age of Consent
Make Ads Not Law
Nice One, Workers!
Dog Eat Dog
Australia is an extraordinarily consensual society: right up there with the cohesive Nordics, the tolerant English, the sociable Southern Europeans and the conciliatory Japanese.
The strong amalgam that makes up civil society bests the volunteering traditions of the Americans even as it escapes their crime stats. Efficiency and professionalism in business and sport are cheerfully offset by wicked traits of irreverence and informality.
And then there is industrial relations (and a few other things).
For reasons old and new, Australia has inherited and embraced the Anglo-Saxon-Celtic way of adversarial shop floor behaviour and now also American managerialism. And it has long infused an ingredient of its own: surrogacy - initially a feature for good, now an abdication.
It all seems so unnecessary, depleting and inferior.
What if industrial relations were to be conducted as a natural extension of Australian great social traditions rather than its diminished politics? While the country's political exchanges usually range between the mean and the meagre, the fact that they are conducted by two major parties barely left and right of the national centre ensures the maintenance of the common weal. The impact of the inter-party petulance is marginal, as Luenig's cartoons periodically reassure us. Not so with industrial relations, where the projection of political fault lines means serious opportunities lost for economy and society.
Good labour and employment law is pre-eminently a product of consensus. Its legitimacy and efficacy depends on the manner of its making. Process truly matters. That has been the recipe behind all the great social pacts, from Sweden's 1938 Saltsjobaden accord through Ireland's 1987 Programme for National Recovery to South Africa's 1993 Saccola-Cosatu-Nactu accord, to mention just some. It is not surprising that the eminent legal comparativist Sir Bob Hepple has placed "a social consensus between business and labour" as the first of four conditions precedent for the successful transformation of any country's employment laws. (The others being: an organic relationship between a specific social need and the form of regulation adopted; an internationalist and open-minded legal culture; and a form of adopted labour law that contributes to improved national economic performance).
It has not been the Australian way. The Accords were a series of partisan deals. The 1993 and 1996 modifications were the results of selective dialogue, and the changes now mooted will be the product of a positively exclusionary process.
There are compelling reasons for a thorough review and overhaul of the labour market's regulatory framework. The case for a unified national system must be all but overwhelming; the period-piece layers that make up the Workplace Relations Act are unhinged, often unreadable and sometimes unspeakable.
There is only one proper way to address the deficiencies: the principal stakeholders must negotiate the reform of the law. Those principals are employers and their representative organisations on the one hand and employees and their representative organisations on the other, augmented now by harder to categorise interest groups that make up the increasingly diffuse labour market. Government at both national and state level is indeed a legitimate social party in this debate, but its essential role (beyond its obvious part as employer in own right) should be that of facilitator and keeper of the broader public interest. Where it introduces into the making of labour law the carping manner and limited gaze of regular politics or, worse still, unmediated ideology, the product is debased.
There are really difficult questions to be answered when any modern society attempts to rethink the right balance between economic performance on the one hand and good social outcomes on the other. What sort of society do we want? Strictures within the modified arbitral system make it (still) not up to the task, but the individualism mooted as a replacement has very little appeal for a country where fairness really matters. Were employers, unions and other stakeholders to step up to the plate and take on the responsibility that is rightfully theirs, the better debate could begin, and more profound solutions negotiated. A slower process, perhaps, but a much more durable, effective and legitimate one. The current path pursues narrow goals and is blighted by controversy. Not a good foundation for renewal.
Perhaps the most remarkable thing of all is that no one thinks it remarkable that industrial laws are being rewritten by (some) politicians and not by the social parties (telling branded as third parties). The principal stakeholders seem to have acquiesced in their contrasting roles as cheer-squad leaders and sideline critics.
Why is it that representatives of employers and employees have declined to take on the challenge of jointly negotiating their shared future? Did they delegate the job, or was it wrested from them? Some of the answer lies in what has gone before. History and institutional design has meant that the social parties have not had to carry the full logic and responsibility of their relationship. The business they have habitually left unfinished has been completed by a proxy. It worked after a fashion then, it hurts now.
The last dozen years have seen the advent of enterprise bargaining, but not the recognition of collective bargaining as a public good. Working within a conflict frame conditioned by the federal times, unions have pushed a narrow model of that institution. They have failed to work up and project alternative models. In 2005 they can point to no sites that demonstrate the fruits of collective bargaining for both employers and employees. There is no concept and next to no experience of what some in the United States have hailed as 'the mutual gains enterprise".
At the same time, employers have been invited by the law to outflank the troublesome institution. Those that could move with ease have already done so. Those saddled with more entrenched unionism have had to glide more discreetly, but to the same end. The goal remains to oust the third parties: unions and those that club with them.
The nature of the current change process threatens a significant casualty: freedom of association. The award worker has given way to the enterprise worker who, in a march to the past, is again becoming the isolated worker. Freedom of association is a part of the essential weave of democracy. In the workplace it cannot survive without active support for the institution of collective bargaining or some modernised equivalent.
If there were to be full and proper participation in the making of new law, freedom of association would be guaranteed. The dynamics of inclusion ensure the result. No social pact could be founded on its denial. Not so the passage of the law now in the making - the outcome is intended to be every bit as partisan as the process.
Are employer organisations, employers, unions and other labour market representatives up to the job of crafting a new framework under state tutelage? It is as much a mindset as a capacity challenge - and it looks too large. The learned behaviour of working through political and institutional surrogates has become instinctive. And, across the fence, the now untempered coalition parties see the terrain of industrial relations as legitimate ground on which to bleed the traditional foe. Too bad in time for those who live and work there.
There will come a day when Labor is returned to federal power, to find itself gifted with the licence to rewrite national labour laws. Will it show insight and hand the exercise of reforging credible laws back to the primary players? Expectations should not be high. One usurper will likely give way to another. Given the strength of the wider community and the resilience of the economy, we will manage then too. But imagine for a moment the new horizons if the politicians were to give space and responsibility to industrial society to reform itself, structurally and culturally, so that it could fall into better step with civil society. It might even lead to the reform of politics.
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