How The Judiciary Continues To Undermine Labour Market Deregulation
Abstract
"Despite improved economic growth, participation rates have not increased in
recent years and Australian employment/population rates continue below those
in comparable countries when they should be above. The existence of two million
or so who would like more employment suggests much more potential for
increasing employment than the official unemployment figures.
Various factors contribute to this situation. But the general approach of ‘judicial’
decision-making in employer/employee relations is having serious adverse effects
on employment decisions. The basis of such decision-making reflects erroneous
assumptions and beliefs, including that tribunals and courts have social policy
responsibilities independently of Parliament, that there is an imbalance of
bargaining power between employers and employees, and that courts have the
capacity to make informed judgements about the workability of employment
contracts.
Particularly (but not only) in the AIRC, such mistaken assumptions have intruded
increasingly without taking proper account of contrary influences that in a
modern society should be reflected in the basis of decision-making. These
influences include the evident intent of the Workplace Relations Act of 1996 to
put less emphasis on judicially-determined employment conditions, the
implications of the continuing development of a competitive economy - with
educated citizens increasingly able to make their own economic decisions - and
the increasing role played by government in providing social security for those
on low incomes. Such influences should combine to mean that employers and
employees are left generally free to negotiate employment conditions with
minimal judicial interference.
Unfortunately, an examination of recent decisions, especially those by AIRC
commissioners, indicates increasing interference or failure to interfere when
obviously necessary. Such decisions have included failures to protect employers
against violent and intimidatory union action, a widening in the definition of
industrial action so as to allow more arbitration, an extension of the
circumstances in which unions have the right to strike and to enter business
premises, a widening of the safety net beyond its objective, an apparently less
favourable treatment of non-union agreements and an increasing attempt to
restrict employers’ use of non-union labour.
A major political response is needed. This could include a wholesale revision of
the legislation and a conversion of the AIRC into a mediatory body with no legal
powers of arbitration or intervention. It would be timely to make such a change
in circumstances where that body has completed one hundred years of regulation."