BRITISH AND AUSTRALIAN LABOUR LAW: THE BACKGROUND TO THE 1982 BILLS
| Published date | 01 July 1983 |
| Author | D. W. Rawson |
| DOI | http://doi.org/10.1111/j.1467-8543.1983.tb00128.x |
| Date | 01 July 1983 |
BRITISH AND AUSTRALIAN LABOUR LAW: THE
BACKGROUND
TO
THE
1982
BILLS
D.
W.
RAWSON*
IN the early months of 1982, bills for the reform of industrial relations law were
introduced by conservative,
or
non-Labour, governments in both Britain and
Australia. Both were strongly opposed by trade unions and, in some respects at least,
were frankly designed to reduce the number
of
trade unionists and to alter the balance
between unions and employers in favour of the latter.
In Britain, the Employment Bill was enacted in October 1982. after prolonged
discussion but without major amendment.
In
Australia, the fate
of
the Conciliation
and Arbitration Amendment Bill 1982 has not been finally determined at the time
of
writing, but its prospects are not bright. Its principal content has been rejected by a
Select Committee
of
the Senate, a committee on which, as in the Senate itself,
supporters of the Liberal-National party coalition government lacked
a
majority.
Moreover, while the Bill was before Parliament, its sponsor Mr Ian Viner. the
Minister for Industrial Relations, was replaced by Mr Ian Macphee, at the head
of
a
somewhat enlarged Department of Employment and Industrial Relations. This has
been followed by the announcement of an extensive review
of
the Conciliation and
Arbitration Act, which is expected to occupy more than
a
year. For the time being, at
least, there are likely to be few practical consequences
of
what has become known as
the ‘Viner Bill’. However that may be, any future developments must occur against
the background and under the influence of the events and the ideas whose history will
be sketched in this paper.
In some respects,
it
is not particularly surprising that moves to change industrial law
should occur simultaneously in Australia and in Britain. Industrial relations in these
isz
countries have much in common, as might be expected since one nation developed
from a series of colonies
of
the other, which for much of its history was its principal
source
of
people, capital and ideas. Both have been highly unionised, by the standards
of
most of the rest of the world, with rather more than half of all wage and salary
earners now belonging to unions. Both have been undergoing periods of economic
difficulty, marked by high levels
of
inflation and
of
unemployment, and in both it has
been common for unions to be blamed for some part of this unsatisfactory situation.
There has been some contact between the two governments as they wrestled with their
industrial relations problems and each has noted the steps taken by the other. For
all
these reasons, they might be expected to be moving in similar directions.
But there is another side to the story, which also has its place in explaining the
present situation.
For
most
of
this century trade unionism, and industrial relations
more generally, developed under two quite different traditions
of
law and policy in
Britain and in Australia; traditions which in some respects were polar opposites. In
Australia, unions were seen as being part
of
a set of systems
of
compulsory arbitration,
which operated at the federal level and also in most
of
the States. These systems were
established
as
the oytcome
of
ambitious ventures in public policy by governments
of
the early twentieth century, which consciously invoked the myths and the power
of
the
law. Trade unions, and the corresponding organisations
of
employers, were made
subject to public regulation. Though they were not seen as part of the machinery of the
state, they were seen as existing primarily to serve public purposes as defined by
governments and by courts. Generations before whimsical British students of
*
Department
of
Political
Science,
Research
School
of
Social
Sciences, Australian National
University.
161
162
BRITISH JOURNAL
OF
INDUSTRIAL RELATIONS
administration coined the term QUANGO, Australian trade unions were indeed
supposed to be quasi-autonomous non-governmental organisations, serving public
purposes from outside the boundaries of the state but entitled only to a ‘quasi’
autonomy in relation to the state and its instruments.
In Britain, by contrast, union autonomy was not only sought and defended with
determination by the unions themselves but came to be seen as part
of
a more
extensive autonomy, rightly enjoyed by the industrial relations system as a whole. This
attitude
of
legal abstention and ‘collective laissez-faire’, set out and celebrated by Otto
Kahn-Freund in the 195Os, was characteristic
of
a much longer period and, in classic
owl-of-Minerva fashion, its heyday was nearly over when it was best described and
most praised. Nevertheless, much
of
it remains, and it remains characteristically
British. Certainly, to put the matter ethno-centrically, it is profoundly ’un-Australian’.
If either
or
both of these models had been entirely in accord with reality, the
paradox of diametrically opposed legal principles in nations with
so
much in common
would have been strange indeed. In fact, this could not be said
of
either model, and
during the last twenty years both have lost more of their validity. In Australia,
compulsory arbitration, that epitome
of
legal interventionism, has continued to lose
some of the legitimacy and the mythic qualities which have maintained it for
so
long.
In Britain, no-one any longer wants to minimise the role
of
the state in industrial
relations. In both countries, just what should be done remains the subject
of
bitter
political controversy; but as the contending parties struggle with each other, they
jointly move away from the old shibboleths and certainties. On the face of it, this
might suggest that the two countries are coming together
in
some middle ground which
is neither ‘abstentionist’ nor ‘arbitrationist’; and, to some extent,
so
they are.
One would have to be a very uncritical believer in middle ways to suppose that such
an outcome will necessarily be better for both, or for either. The prevailing
atmosphere as regards industrial relations in both countries is one
of
anxiety if not
of
gloom, though this common state of mind is based on a variety
of
inconsistent
arguments and expectations. The present conjunction of these two bills, with their
similarities and their differences, shows both common and distinguishing factors at
work. At a time of change and stress, ageing and creaking conventions and
assumptions are being variously dismantled, chipped away and eroded.
AUSTRALIA-THE
RETREAT
FROM
THE
‘NEW
PROVINCE
FOR
LAW
AND
ORDER’
This was the title of a paper which
I
originally wrote
in
1975 (Tay and Kamenka,
1980:290); but it seems good for a second airing. Indeed, 1975 could be said to have
marked a temporary halt to the retreat, in that it saw the introduction of the system of
wage indexation and its accompanying guidelines, which led to increased ‘order’ in
wage negotiation and a revival, if not of the law, then of law-like statements and
processes. However even this development, which after a surprisingly long life came to
an end with the abandonment of indexation
in
1981, represented
no
more than a blip
in a much longer movement away from both the trappings and the reality of legal
regulation.
This is not to suggest that the law has ceased to play a vital part in industrial
relations in Australia,
or
even to deny that Australian industrial relations systems are
more closely regulated by the law than those of the rest
of
the world. It is merely to say
that the contrast between present reality and the expectations with which the
arbitration systems were founded is very marked indeed, and that this has been a long
term change, though with some temporary reversals from time to time. Reality began
to move away from the expectations
of
the system at such an early stage that we need
to go back a long time to find those expectations
in
a clear form. One example is the
very phrase the ‘new province...’, in which Justice Higgins, the principal founder of
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