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Friday, 11 October 1996
Page: 4021


Senator COONEY(11.25 a.m.) —The Australian workplace is regulated by laws which are forever changing. Their origins are mainly in England but their development here has been decisive to their impact on the community. We are now debating legislation which seeks to change them dramatically. Such changes, if made, will affect both the workplace in particular and society in general and will do so in a major way. The coalition's legislation owes much to a tradition which holds that the law relating to employment is best when based on that relating to contract. A different tradition holds that it is best when based on that relating to civil rights.

The introduction of Australian workplace agreements in this legislation shows the profound belief the coalition has that the law of contract provides the best means of establishing the right relationship between employers and employees. It is a belief that conser vative governments over many centuries have held. It is a misguided one and one that has led to many and gross injustices.

The Statute of Labourers was passed in 1349, almost 650 years ago. It embraced the concept that an employer and an employee should reach agreement about the conditions under which one will work for the other as individuals and not as members of a negotiating group. It regulated the maximum level of wages which could be paid to labourers. Its sponsors accepted the law of contract as the appropriate one to fix the relationship between employers and employees but with riders that were to the disadvantage of the workers. The Statute of Labourers was the result of policies comparable to the policy giving rise to the workplace relations bill.

Early legislation dealing with conditions of employment were loaded against workers. A number of the statutes of 12 Richard II passed in 1388 and that of 23 Henry VI CAP X111 show this. Parliament pursued this bent—that is, the English parliament—thereafter for centuries. The Statute of Artificers of 1563, the Settlement Act of 1662 and the Spitalfields Weavers Act of 1773 are examples. At times, the conscience of the legislature was moved to protect the condition of workers as with the Truck Act of 1701, but the general thrust of the law, both statute and common, militated against employees.

The law of contract envisages that the relevant agreement is to be made between individuals, that there is to be privity to its operation and that it is reprehensible for a third party to affect it in any way. These concepts have, for centuries, been a powerful force against workers and against unionism. So has the doctrine of restraint of trade, which the courts have enforced with some modification, but with vigour, since at least the time of Henry V.

The history of labour law shows that it has often disadvantaged workers both in their making of employment contracts and in their formation of unions. This legislation adds to that history. To prejudice the ability of people to engage in effective unionism is to greatly increase the risk of them receiving poor wages and bad working conditions. Those concerned to confine the remuneration of others have known this for centuries and have moved to destroy or at least weaken the capacity of workers to combine. The following passage appears on page 439 of the 16th impression of Six Centuries of Work and Wages written by Thorold Rogers and published in the early part of this century. It reads:

For nearly five centuries the legislature had declared that labour partnership, that is, associations of working men formed for the purpose of selling their labour collectively to the best advantage were under the ban of the law. The motive for this repression was never concealed. It was designed in order to increase and secure rents and profits at the cost of wages.

On 21 June 1824 the English parliament passed `an Act to repeal the Laws relative to the Combination of Workmen; and for other Purposes therein mentioned'. Its preamble lists a large number of statute and common law doctrines all of which until then prohibited the formation of combinations. The reading of the list shows the entrenched and virulent attitude conservative governments have entertained against unions throughout history. I recommend a reading of that preamble to people who are dealing with this bill.

Since 1824 changes in the law have allowed trade unions to increase their ability to pursue the interests of workers. This was accomplished in the United Kingdom with legislation such as the Trade Union Act 1871, the Conspiracy and Protection of Property Act 1875, the Trade Disputes Act 1906, and the Trade Union Act 1913. In Australia the great reform accomplished at a federal level was the passing of the Conciliation and Arbitration Act 1904. This began the legislation which the federal government has undertaken since then and of which the present bill is the latest example.

Nonetheless the forces against workers combining effectively to further their industrial interests have flourished for centuries in England and for about 200 years in Australia and continue to be formidable. They have had much influence in the production of the workplace relations bill 1996.

Australia has developed labour laws both at a federal and state level which in many ways are unique, but the history of English employment law still has a powerful impact in this country. Belief in contract law as the best basis on which to build the proper relationship between employer and employee is a profound influence on the government's legislation now under debate. It is a belief that a discrete agreement between an individual employer and an individual employee made and sustained without any outside intervention will bring the greatest good to the workplace. It is a belief that privity of contract ought to prevail over transparency in the workplace. It is a belief held by authorities over many centuries in England and which has had a cruel and unjust outcome for millions of workers.

Such expressions as `freeing up the labour market', `improving labour market flexibility and competitiveness', `providing more effective choice and flexibility for employers and employees in reaching agreements' and `the need for award simplification' show that the people using them believe the law of contract to be the supreme instrument for obtaining the right balance in the workplace. History shows the horror that can result from this belief when it is put into practice.

Henry Lawson wrote succinct prose towards the end of the last century. He used it to capture the sad situation of a young worker left to cope on his own in negotiating his remuneration. In A Visit of Condolence he has Bill Anderson telling the mother of his co-worker Harvey about her son who had died during the night. It reads:

They treated him bad at Grinder Brothers; they didn't give him a show to learn nothing; kept him at the same work all the time, and he didn't have cheek enough to ask the boss for a rise, lest he'd be sacked.

Workplaces without strong, efficient unions of integrity are fertile places for the growth of exploitation and injustice. On 20 June 1919, Justices Isaacs and Rich delivered a judgment in the matter of the Federated Municipal and Shire Council Employees Union of Australia and the Melbourne Corporation, which contained the following passage:

The "Industrial Revolution" for a long time . . . made the workman's labour a mere marketable commodity to be bought at the lowest price that individual competition between workers would permit. The degradation and suffering that ensued, the revolt against the system, the repression of illegal acts, the amelioration of the law, the organisation of labour, the gradual recognition of collective bargaining, the introduction of private conciliation and arbitration as well as of industrial laws securing better conditions for workers, are well known historical facts.

The main purpose of the workplace relations bill is other than to ameliorate the law in favour of workers, to make more efficient the organisation of labour or to improve collective bargaining. Rather it is to reduce the range of matters in respect of which employees can seek awards, to increase the chances of their having to negotiate employment contracts with inadequate assistance, and to promote bargaining not on a collective basis but person to person. This legislation seeks to return to industrial relations of a bygone era and one that in the interests of equity ought not be revived. This bill would bring joy to the heart of Josiah Bounderby of Coketown.

In May 1991, the Employment Contracts Act became the law which governs industrial relations in New Zealand. Its passage through the parliament followed wide public debate. On 19 April 1991, the New Zealand Catholic bishops conference published a pastoral statement about the legislation which contained the following passage:

According to Government, the purpose of the proposed legislation is to create flexible labour market practices so that production efficiencies will be encouraged; they in turn will lead to economic growth. The legislation dismantles the national award system and promotes new forms of work place bargaining. It does away with compulsory unionism and allows employers and workers to enter into collective or individual contracts, thereby removing unions statutory bargaining rights. It redefines the internationally understood terms, freedom of association and right to organise in trade unions, thus hampering the right to form unions. It also restricts the right to strike.

The legislation is proposed in a depressed economic climate with a current 9% unemployment rate. At the same time the legislation is part of wider economic policy, which is underpinned by a monetarist approach to economic planning. "Mon etarist" theory is a return to liberal capitalism with its emphasis on the reliance of market forces alone.

That passage gives an eloquent description of the general thrust of the workplace relations bill we are now debating. Later in the statement, the conference said:

The underlying ideology of the new industrial legislation is unacceptable for two reasons: firstly because it emphasises free choice without balancing this concept with concern for the common good, ie. public good; and secondly because it emphasises the right of the individual without their accompanying duty to act in solidarity and without giving any corresponding rights to the group.

The cogent words of the bishops encapsulate two of the fundamental flaws in the legislation we are now debating. The philosophy underlying the New Zealand act is tainted, yet the government has embraced it with enthusiasm and this legislation is the result. It is a bad result.

The union movement is the best of a number of institutions within the community for ensuring that workers have an effective say in the setting of their wages and conditions of employment; for giving them a sense that they are being dealt with fairly and, if not, they can do something to correct it; for endowing them with true security in their work; and for equipping them with a valid perception of having adequate control over matters that affect their general welfare. Unions to be effective must be dedicated to the welfare of their members, must be energetic and skilful in the carrying out of their true purposes, must be democratic in the election of their officials and in the conduct of their affairs, and must be of such a size and have such powers as would allow them to operate at the optimum for industrial organisations.

The Industrial Relations Act 1988 presently sets the framework within which most Australian unions operate. Part IX of the statute deals with the establishment and operation of unions. It provides that their officials will be elected on a universal franchise of their members and that they will be administered democratically. It requires that their finances be audited and that copies of their reports and accounts be made available both to their members directly and to their general meet ings. It directs them to lodge all their relevant documents with the Industrial Registrar. It declares that people meeting certain criteria are entitled to be members of them. It disqualifies some from becoming officials because of the transgressions they have committed.

Unions as regulated by the Industrial Relations Act 1988 are the best institutions available to give workers proper dignity, an apt degree of power and a true democratic say in places where they carry out their occupations and in the organisations established to ensure that happens. This legislation will do a great deal of damage to those institutions.

There was a very interesting and a very good article in the Australian this morning by John Hyde talking about the need to give moral dimensions to the way we conduct public affairs. That is a very general summary of what he said. I agree with that proposition.

It is becoming more and more apparent to the community that the reliance on economic forces alone is not leading this community to where it should be going. This bill is a legacy of that way of thinking which is now passing; that way of thinking which says that, if we can manipulate economic forces, somehow good will come to society without there being any regard to the sorts of moral, cultural and social considerations that are needed to bring us all to that happy state that we all approve of. This legislation is a product of a philosophy that is passing.

The other thing it does, which I think is a very negative aspect of it, is: it sees that wealth and productivity and industry depend upon those things that used to make factories productive. I was listening last night to Shimon Peres, the former Prime Minister of Israel, talking about this. He said that era has passed and that what is now needed to make a society which is wealthy, just and urbane is brain power and moral power. There is nothing in this legislation which will encourage the development of that.

When this legislation is taken in conjunction with the fact that we as a nation are cutting down on expenditure on education, on research and on development, it is seen as part of a pattern which is, unfortunately, going to set back this nation in the world community. Places that are advancing—and this is a point that has been made again and again around the world—are those that see that true wealth and true justice depend upon a fair and equitable system dedicated to the increase of education, the increase of intelligence and the increase of fairness. That is the way forward—not the philosophy that is within this legislation.