Alternative Law Journal
No apologies for a second Opinion piece on the new work laws. In the March issue Dan Dwyer of the Communications, Electrical and Plumbing Union of Australia trenchantly criticised the recent employment laws from a trade union standpoint, particularly in relation to the quasi-criminalisation of requests for terms in agreements by workers and unions which contained ‘prohibited content’.
Here I look briefly at the language employed in the government propaganda blitz before the work laws package was introduced and suggest that choice and flexibility for one side of the work contract might lead to the exact opposite for the other party to the bargain.
The two words bandied around most often by the advocates and spinners for the radical labour law reforms were ‘choice’ and ‘flexibility’. The Prime Minister and the Minister responsible incanted the terms like some sort of religious mantra and the proponents of the package of laws have sought, somewhat successfully, to imbue both these terms with a warm, friendly and positive hue. But even the use of the term ‘reform’ is a clever distortion of its general political meaning of ‘progressive development’: the laws are reactionary in that they turn back the clock of the law of employment to the early part of the last century. Something Orwellian is at work — excuse the pun — in the use of language here.
The ideologues on the political right and the business clubs and lobby groups that understandably acted as government cheerleaders in the debate knew full well that the new measures only gave employers more freedom — or ‘choice and flexibility’ — in the hiring and firing process. The employers’ increased choice is a straitjacket for many workers.
The Prime Minister has repeatedly stressed that the present state of the labour market favours employees in that there are too many jobs and too few workers, the implication being that workers, armed with the golden eggs of choice and flexibility, can negotiate their terms and conditions from a position of strength. This is far too simplistic as the labour market is not uniform. While it is true that those who are highly skilled or possess specialist training can now bargain from a position of strength, they could do so even before the current ‘reforms’. The bulk of the workforce is unskilled or has only limited skills. Ascertaining the exact percentage of workers with little or no skills is difficult as it depends on how unskilled is defined. However, American studies have shown that over 70% of the workforce can be categorised in this way. The position is not likely to be significantly different in Australia; there are certainly far more junior office workers, shop assistants, agricultural and factory labourers, waiters, kitchen hands, cleaners and the like than there are business owners, farmers and professionals. For this vast army of workers the notion that they benefit from the new choices is laughable. Indeed for many of them the new laws take away one of their most fundamental rights: not to be unfairly dismissed.
In their propaganda barrage prior to the implementation of the laws the government cannily sought to deflect attention from this radical change by suggesting that the preserved remedy for unlawful termination was the same as for unfair dismissal. In fact, the two concepts are totally different. And even Mrs Thatcher baulked at dismantling the protection of the unfair dismissal regime. One irony of this return to something akin to the old common law position is that the common law has moved on significantly. Most importantly, the House of Lords has, in the last ten years, established the principle that an employer has a broad and general duty to employees to act fairly and reasonably towards them at all times. Australian workers might be able to claim that this principle should be applied here so that they can resort to common law remedies if they are unfairly treated.
The common law traditionally favoured the employer, evolving as it did from the master/servant relationship. In the last century Australia has painstakingly established a body of labour law which, while not perfect, progressively sought to create a fair balance between the interests of the employer and employee. Access to the various industrial tribunals was easy and inexpensive and the decision-making process was quick. Tribunal adjudicators developed an enviable expertise in the field. Leading researchers in the field have argued that there was little evidence of any real need for the new laws: see <http://www.econ.usyd.edu.au/content.php?pageid=14896> .
The last decade has witnessed an increasing trend towards casual work and low wages in the labour market; the widening of the gap between the rich and the low paid that is one result of this hardly fits well with the traditional idea of Australia as an egalitarian society. The new laws will not improve the position of casual low paid workers one iota. Their raison d’être appears to be founded on the doctrinal desire of a small group of business lobbyists and political purists to shift the pendulum in employment relations drastically towards the employer and, at this stage at least, they seem to have achieved their goal.
KEN BROWN is the Convenor of the Alternative Law Journal’s Northern Territory Editorial Committee and has lectured on employment law.